JUDE ONYEMAECHI OBULADIKE v. GABRIEL ELOKA NGANWUCHU
(2013)LCN/6110(CA)
In The Court of Appeal of Nigeria
On Friday, the 19th day of April, 2013
CA/E/77/2009
RATIO
LAND LAW: THE POSITION OF THE LAW AS TO THE VALIDITY FOR SALE ON LAND UNDER NATIVE LAW AND CUSTOM.
The law is that for sale of land under native law and custom to be valid, it must be proved that:
1. There was payment of purchase price.
2. The purchaser was let into possession by the vendor and the sale was
3. In the presence of witnesses.
See Odusoga v. Rickets (1997) 7 NWLR (Pt. 511) 1. Cole v. Folami (1956) S.C.N.L.R. 180. Etajata v. Ologbo (2007) 16 NWLR (Pt. 1061)554. Per. MOJEED ADEKUNLE OWOADE, J.C.A.
FAMILY LAND: WHETHER THE SALE OF FAMILY LAND IS VALID WITHOUT THE NECESSARY CONSENTS.
It is trite law that a sale of family land by the Head of the family without the consent of the principal members of the family is voidable but a sale of family land by principal members of the family without the consent of the head of the family is void ab initio.
See: Ekpendu v. Erika (1959) SCNLR 186. Onayemi v. Idowu (2008) 9 NWLR (Pt. 1092) 306 at 330. Per. MOJEED ADEKUNLE OWOADE, J.C.A.
DEFINITION OF THE TERM DEED
The 8th Edition of the Black’s Law Dictionary at page 444 defines a Deed as:
“….A deed is therefore a particular kind of document. It must be a writing and a writing paper or its like e.g. vellum or parchment. Any instrument under seal is a deed if made between private persons. It must be signed, sealed and delivered. A deed must either (a) effect the transference of an interest, right or property or (b) create an obligation binding on some person or persons or (c) confirm some act whereby an interest right or property has already passed”. Per. MOJEED ADEKUNLE OWOADE, J.C.A.
EVIDENCE: ADMISSIBILITY OF HEARSAY EVIDENCE.
The rule against hearsay is a rule governing inadmissibility of evidence. It is well stated by the judicial committee of the privy council in Subramaniam v. Public Prosecutor (1965) 1 W.L.R. 965 at 969 thus:
“Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the Statement, but the fact that it was made”.
See also Gilbey v. Great Wester Railway (1910) 102 LJ 202.
Haines v. Guthrie (1884) 13 C B.D. 818.
Section 38 of the Evidence Act 2011 with a simpler but clearly more embracing phraseology merely declares, oral or written statements of persons who are not called as witnesses is hearsay. Per. MOJEED ADEKUNLE OWOADE, J.C.A.
CRIMINAL LAW: THE POSITION OF THE LAW ON THE OFFENCE OF FORGERY.
Generally speaking, any alteration of a document is forgery with or without a fraudulent intention, but the offence of forgery is proved when there is alteration or uttering of document coupled with a fraudulent intention. It follows that either in the first, (grammatical) sense, or in the second (legal) sense there could be no forgery without an alteration or uttering of a document. Per. MOJEED ADEKUNLE OWOADE, J.C.A.
EVIDENCE: PROVING AN ASSERTION OF ALLEGATION OF A PARTY
An assertion is an allegation, averment of a factual situation or position, for an assertion to be elevated to the category of proof or belief it must be supported by relevant and concrete oral and/or documentary evidence. An assertion not supported by proof remained an assertion and a trial judge would not be expected to act on the assertion of allegation of a party in place of evidence or proof. I suppose this is the whole basis of the law of evidence as means of proof. Per. MOJEED ADEKUNLE OWOADE, J.C.A.
EVIDENCE: THE PURPOSE OF CROSS-EXAMINATION.
The purpose of cross-examination is to test the veracity of a witness, shake his credibility and elicit evidence in pursuit of the case of the opponent. Cross-examination is a powerful and valuable weapon for the purpose of testing the veracity of a witness and the accuracy and completeness of his story.
See Mechanical & General Inventions Co. Ltd. & Anor. v. Ausstin & Austin Motor Co. LTD. (1935) A.C. 349 at 359. Per. MOJEED ADEKUNLE OWOADE, J.C.A.
JUSTICES
ABUBAKAR JEGA ABDULKADIR Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
JUDE ONYEMAECHI OBULADIKE Appellant(s)
AND
GABRIEL ELOKA NGANWUCHU Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Anambra State in the Idemili Judicial Division holden at Ogidi, presided over by Honourable Justice J.I. Nweze, delivered on 18th day of November 2008.
The appellant as plaintiff by a writ of summons dated and filed on 15th day of June 2004 claimed against the Respondents as follows:
(a) A declaration that the Plaintiff is entitled to a statutory right of occupancy in respect of ALL THAT piece or parcel of land lying being and situate at Okwuagadinwanya Obosi commonly known as and called OLILEOJI LAND WITHIN Awada Layout Obosi, the dimension, size and abuttal of which are known to the parties and not in dispute and more particularly shown in survey plan No. TLS/AN/LS49/93 and further described in the litigation survey plan filed in this suit.
(b) An order of perpetual injunction restraining the Defendants, his agents, servants, privies, thugs or any other persons claiming or acting for the Defendant from entering, frustrating or vexing the plaintiff or continuing to disturb, interfere, harass, enter, frustrate or vex the plaintiff, his agents, servants or any person claiming through or from the plaintiff, from the use, enjoyment and occupation of ALL THAT piece or parcel of land lying being and situate at Okwuagadinwanya Obosi commonly known as and called Olileoji land within Awada layout Obosi, the dimension, size and abuttals of which are known to the parties and not in dispute and as further shown in the litigation plan filed in this suit.
(c) The sum of N2,000,000.00 general and special damages for trespass.
The appellant repeated his above claims in his statement of claim dated 4/12/2006 filed along with litigation plan on 5/12/2006. In compliance with the High Court Civil Procedure Rules of Anambra State 2006, the appellant filed written statement on oath/deposition of witnesses, list of witnesses and copies of documents to be relied on.
On 26th July, 2007, the Respondents filed his statement of defence and counter claim dated 12th July 2007 as well as the Respondent’s list of witnesses, documents written depositions on oath, and litigation plan. The Respondent counter-claimed as follows:-
(a) Declaration that the Defendant is entitled to the Statutory Right of Occupancy over the two (2) Plots of land lying, being and situate at Mkputunkpu Ugwu Ololoji land, Obosi and covered by Survey plan No. AC/AM/146/2004 and further described in the litigation Survey Plan No. AC/LD/39/2007 filed with this statement of Defence.
(b) An order of perpetual injunction restraining the Plaintiff, his agents, privies, servants and/or thugs from disturbing, whatsoever interfering with the Defendant’s use, enjoyment and occupation of all that two (2) plots of land lying being and situate at Mkputunkpu Ugwu Ololoji land, Obosi and covered by survey Plan No. AC/AM/146/2004 and further described in the litigation survey plan No. AC/LD39/2007 filed along with this Statement of Defence.
(c) General damages of N2,000.000.00.
(d) Special damages of N948,150.000.00.
The appellant thereafter filed a reply to the Statement of Defence and Counter Claim on 18/1/2008 as well as further Statement on Oath of the Plaintiff s witness to which the Respondent reacted by filing two additional statements on oath on 25/5/2008. The appellant in reaction thereto filed three additional statements on oath of his witnesses and further list of documents on 9/6/2008.
The case proceeded to trial at which the appellant testified in person and called three (3) other witnesses. The respondent also testified in person and called four (4) other witnesses. On the conclusion of the trial, the parties filed and exchanged their written addresses. These were adopted at the oral hearing of the suit.
The facts of the case are as follows:-
The land in dispute is agreed by both parties to belong to the Umuanayonwu family. The family sold 8 plots of the land to the respondent’s predecessor in title. The case of the respondent is that the land in dispute formed part of the 8 plots of land sold to his predecessor in title by the family. The case of the appellants is that the land in dispute was not part of the land sold to the respondent’s predecessor in title and further that it was sold to him by the said Umuanayonwu family.
The Umuananyonwu family do not dispute that title to the land had diverted from them. Also, apart from the two parties, there is no other claimant to the land in dispute.
The learned trial judge therefore conceived that the singular issue in the case is, who as between the plaintiff/appellant and the respondent’s predecessor in title was the land in dispute sold to by the family.
PW1, the current head of the vendors family gave evidence which contradicted the appellant’s case which evidence supported the respondent’s case. The learned trial judge dismissed the plaintiff s appellant’s case and upheld the counter-claim of the defendant respondent.
Dissatisfied with this judgment, the plaintiff appellant lodged a notice of appeal (containing thirteen (13)) grounds of appeal in this court on 11/2/09.
Appellant’s brief of Argument filed on 9/12/09 was deemed filed on 14/10/10.
Respondent’s brief of argument dated 17/3/11 and filed on 18/03/11 was deemed filed on 16/05/11.
Learned counsel for the Appellants nominated the following twelve (12) issues for determination.
1. Whether the trial judge was right in holding that the memorandum of customary grant of land dated 24th day of February 1992 and tendered as exhibit P2 by the Plaintiff/Appellant which was signed by the head of family Michael Ibenwa and another principal member of the family PW1 (Henry Onwura Ebunam) is not valid as the third principal member of the family Jerome Ebunam did not sign the said exhibit P2 (Ground 1 of the Notice of Appeal).
2. Did the defendant/respondent prove beyond reasonable doubt that exhibit P2 the memorandum of customary grant of land of 24/1/92 granted to the Plaintiff/Appellant by Umuanayaonwu family was forged and did the Plaintiff/Appellant admit two reasons or any of the reasons for the allegation of forgery of exhibit P2 by the Defendant/Respondent as held by the trial judge (Grounds 2 and 4 of the Notice of Appeal).
3. Whether the Claim/Suit No. HID/120/2004 tendered as exhibit P9 (also seen at page 197 of the record of appeal) between Michael Ibenwa versus Jude Onyemachi) which was not proved to have been served on the Plaintiff/Appellant tendered by the defendant/respondent under cross-examination of PW1 (Henry Ebunam) is sufficient proof that Michael Ibenwa (senior) challenged exhibit P2 (the memorandum of customary grant of land) made between the Appellant and Umuanayonwu family of Obosi) and the onus was on the Plaintiff/Appellant to call Michael Ibenwa Junior) the son of Michael Ibenwa as a witness and the failure of which was fatal to the case of the Plaintiff/Appellant (Ground 3 of the Notice of Appeal).
4. Whether the trial court was right in holding that the land in dispute was never sold at anytime to the Plaintiff/Appellant by the Umuananyonwu family and that the act of the Plaintiff/Appellant on the land was an act of trespass on the land (Ground 5 of the Notice of Appeal).
5. Whether the trial judge was right in discrediting the entire evidence of PW1 (Henry Onwura Egbunam) (Ground 6 of the Notice of Appeal).
6. Whether the trial judge was right to stay in the private recess of the judge’s chambers to do a comparison of a technical nature of the sketch plan containing plots 17 and 18 beacon numbers and dimension of the land in exhibits P1 and P1A and to come to the conclusion that the beacon numbers in exhibits P1 and P1A do not match the plan of the parties tendered as exhibits P3, P4, D1 and D2 or show the land in dispute as plots 17 and 18 (Ground 7 of the Notice of Appeal).
7. Whether the court was right in holding that the insertions of Plots 10, 12, 14, 16, 17, 19 and 20 in exhibit P8 were made before exhibit P8 was signed and the plea of mistake in the insertion of plots 10, 12, 14, 16, 17, 19 and 20 instead of survey beacon numbers in exhibit P8 was established by the defendant/respondent. (Ground 8 of Notice of Appeal).
8. Whether the court was right to hold that no land was sold to the Plaintiff/Appellant as in exhibit P2 as the Umuananyonwu family had already divested itself of title in plots 17 and 18 and Umuananyonwu family did not establish the portion of land it sold to the defendant’s/respondent’s predecessor in title.
9. Whether the trial judge was right in relying on the evidence of DW2 Christian Eze to hold that the land in dispute belonged to the defendant/respondent as the evidence of DW2 (Christian Eze) was unshaken under cross-examination (Ground 10 of the Notice of Appeal).
10. Whether the Court was right in holding that the Plaintiff/Appellant had no title at all over the land in dispute (Ground 11 (eleven) of the Notice of Appeal).
11. Whether the trial judge was right in awarding the sum of N948,150.00 claimed by the defendant/respondent in the counter claim (Ground 12 of the Notice of Appeal).
12. Whether the trial judge was right in dismissing the claim of the Plaintiff/Appellant and in awarding the counter claim of the Defendant/Respondent (Ground 13 of the Notice of Appeal).
Learned counsel for the Respondent reacted by formulating ten (10) issues for determination but the issues also cover the 13 (thirteen) grounds of appeal covered by the Appellants Issues.
The issues are:-
1. Whether the trial court was right in holding that exhibit P2 was invalid and a forged document (Ground 1, 2 and 4).
2. Whether Suit No. HID/120/04 tendered as Exhibit P9 was not a sufficient challenge by Michael Ibenwa of Exhibit P2 and whether the onus was not on the Appellant who asserted positively that Exhibit P9 was filed by Michael Ibenwa (Junior) to call evidence in Proof of that fact (Ground 3).
3. Whether the trial court was right to hold that PW1 (Henry Onwura Ebunam) was an untruthful witness Ground 6).
4. Whether the trial court was right in evaluating the evidence tendered before it which evidence included
Exhibits P1, P1A, P3, P4, D1 and D2 (Ground 7).
5. Whether the trial court was right to hold that the insertions of plots 10, 12, 14, 16, 17, 18, 19 and 20 in Exhibit P8 were made before Exhibit P8 was signed, and the plea of mistake in the insertions of the said Plots 10, 12, 14, 16, 17, 18, 19 and 20 in Exhibit P8 as beacon numbers instead of Plot numbers was established by the Defendant/Respondent (Ground 8).
6. Whether the trial court was right to hold that the Plaintiff/Appellant had no title at all over the land in dispute in that no land was sold to the Plaintiff/Appellant as in Exhibit P2 as the Umuananyonwu family had already divested itself of title over plots 17 and 18 (Grounds 9 and 11).
7. Whether the trial judge was right in relying on the evidence of DW2 (Christian Eze) to hold that the land in dispute belonged to the Defendant/Respondent as the evidence of DW2 (Christian Eze) was unshaken under cross-examination (Ground 10).
8. Whether the court was right in holding that the Plaintiff/Appellant had no title at all over the land in dispute (Ground 5).
9. Whether the trial judge was right in awarding the sum of N948,150.00 claimed by the Defendant/Respondent in the counter claim (Ground 12).
10. Whether the trial judge was right in dismissing the claim of the Plaintiff/Appellant and awarding the counter claim of the Defendant/Respondent (ground 13).
The appeal shall be decided on the issues formulated by the Appellant. Appellants issues Nos. 1 and 2 shall be treated together as against the Respondent’s answer to both issues in Respondent’s Issue No. l. So it is that Appellant’s Issues Nos. 8 and 10 shall be treated together as against the Respondent’s reaction by Respondent’s Issue No. 6.
On Issues 1 and 2, learned counsel for the Appellants submitted that for sale of land under native law and custom to be valid, it must be proved that:
(1) There was payment of purchase price.
(2) The purchaser was let into possession by the vendor and the sale was
(3) In the presence of witnesses.
He referred on the above to the cases of Odusoga v. Rickets (1997) 7 NWLR (Pt. 511) 1.
Cole v. Folami (1956) S.C.N.L.R 180 and Etajata v. Ologbo (2007) 16 NWLR (Pt. 1061) 554.
Counsel submitted that the Plaintiff/Appellant pleaded in paragraphs 3, 4, 5 of the statement of claim at page 107 that:
(a) He purchased the land from the original owners of the land from time immemorial.
(b) That he bought the land from the principal members of Umuananyaonwu sub-family of
Umunna akwa family okpuno, Ire village Obosi which family owned the land from time immemorial.
(c) The Plaintiff performed all customary rites of alienation of land in accordance with the native law and custom of Obosi community on 15/3/78 by killing a goat offering some tubers of yam, kola nut, assorted beers and hot drinks which ceremony and gifts signify an outright transfer of ownership, possession and title of the land in dispute.
(d) The above native customary law transaction of 15/3/78 was on 24/2/92, reduced into writing by way of memorandum recording the said customary grant of land between the Plaintiff and the representatives of Umuananyonwu family. Attached to the Memorandum dated 24/2/92 is property survey Plan No. A10/AN87/92.
Counsel submitted that the above averment in the pleadings were also in evidence in the deposition of PW1, who was a principal member of the Umuananyonwu family as at the time of the grant of the land to the Appellant and participated therein. That however, PW1 as at the time of giving evidence in the above suit was the Eldest member of Umuananyonwu family and the Diokpa and head of Umuananyonwu family.
The customary law transaction, said counsel was on 15/3/78 and not on 24/2/92. However, the trial judge relied on exhibit P2 which is the memorandum of customary grant of land made on 24/2/92 in aid of memory of the customary land transaction of 15/3/78 to hold that the sale of land was invalid since it was not signed by one of the principal members of Umuananyonwu family Mr. Jerome Ebunam.
In the first place, said counsel, the transaction was purely a native customary law transaction. No written document was necessary. There was no challenge of the 1978 transaction.
The only challenge was the cross-examination of PW1 (Henry Onwura Ebunam) to the effect that Michael Ibenwa did not sign exhibit P2 to which PW1 insisted that Michael Ibenwa signed and the signature therein in exhibit P2 is that of Michael Ibenwa. That, PW1 stated that Michael Ibenwa, himself and Jerome Ebunam are three persons that sign documents for Umuananyonwu family and the absence of Jerome Ebunam was because he was a police officer serving in Sapele who was not present on the day exhibit P2 was made.
Learned counsel for the appellant noted that:
(a) There was no claim to set aside exhibit P2 (the memorandum of customary grant of land of 24/2/92 by the defendant nor by any member of Umuananyonwu family of Obosi before the trial judge.
(b) There was no action pending in court challenging or that has successfully challenged the sale of land to the Appellant by any member of Umuananyonwu family of Obosi in attack of exhibit P2 or the sale of land under native law and custom of Obosi to the Appellant.
For these reasons, counsel said, there was therefore no basis for the trial judge to hold that exhibit P2 was invalid.
Appellant’s counsel argued that the law is settled that sale of family land by the head of the family in not void but voidable at the instance of the non-consenting members of the family. Even an aggrieved member of the family though not a party can initiate an action to set aside a conveyance of family land done without proper authority. He said Jerome Ebunam who only died in 2001 did not throughout his life and at the making of the property survey plan and beacons (exhibit P3) in 1992 attached to exhibit P2 challenge or take action in any court in challenge of exhibit P2 (the memorandum of customary grant under the ground that he (Jerome Ebunam) did not sign exhibit P2 and therefore the exhibit P2 is null and void.
On this, counsel referred to the cases of Salako v. Dosunmu (1997) 8 NWLR (Pt.517) 371 at 398 – 399
Afolabi v. Adekunle (1983) 2 SCNLR 141.
Elias v. Disu (1962) 1 SCNLR 361.
Folami v. Cole (1990) 2 NWLR (Pt. 133) 445.
It is clear, said counsel that exhibit P2 can only be set aside by the head of the family or a member of the family. The court cannot suo motu set aside exhibit P2, not being a father Christmas and cannot grant relief not asked by a party.
Ekpenyong v. Nyong (1975) 2 SC 71 at 80.
Egonu v. Egonu (1978) 11- 12 SC 111 at 133.
Counsel submitted that no member of PW1’s family came to court to challenge the transaction in exhibit P2 and P3 nor challenged the evidence of PW1 in respect of the sale of land to the Appellant in terms of the land shown in exhibit P3 otherwise called plots 17 and 18 sold to the Appellant. No member of PW1’s family came to court to say that the family of PW1 did not receive the purchase price, traditional gifts of yam tubers and other rituals performed during the customary sale of land to the Appellant by PW1’s family, which constitute proper sale of land under native law and custom of Obosi.
Counsel submitted that at pages 349, 350 and 351 of the record of appeal, PW1 stated under cross-examination thus:
“Messrs Michael Ibenwa, Jerome Ebunam and myself signed exhibit P8 on behalf of my family. For a deed to be valid and binding in my family it must be signed by the head of the family and two principal members of the family otherwise the document is invalid”.
Counsel argued that the evidence is with respect to a Deed and not Memorandum of Customary Grant of Land recording customary grant of land.
That, in any case PW1 continued his evidence and stated:
“I have seen exhibit P2 only 2 members of my family signed it. I know Jerome Ebunam. He is a principal member of our family. He died around 2001. He was alive hale and hearty in 1992. He did not sign exhibit P2. That was because he was a policeman serving at Sapele at the time. Michael Ibenwa could sign his name and signature.”
Counsel submitted that when PW1 was asked the last question at page 350, whether the sale was without the consent of Michael Ebunam and Jerome Ebunam, he answered at page 351, that:
“That is not so, we sold the land to the plaintiff and Chief Anachuna about the same time Michael Ibenwa died in 2004. He consented to the sale of the land to the Plaintiff. It is not true that I forged the signature of Michael Ibenwa. The family sold the land jointly and not myself personally”.
Counsel submitted that PW1 also stated that he noticed no difference in the writing of Michael Ibenwa in between exhibits P2 and P8 and that all that he knows is that Michael Ibenwa signed both exhibits P2 and P8. That his son Michael Ibenwa Jnr. engineered Suit No. HID/120/2004 for the cancellation of exhibit 2l
P2. And, that exhibit P9 could not have been filed by Michael Ibenwa (senior) in July 2004 because Michael Ibenwa (senior) was sick in July 2004 and died in August 2004. Also, that there was no judgment of the court in Suit No. HID/120/2004.
Appellants counsel submitted that the cross-examination of PW1 did not diminish nor contradicted the evidence of customary law and transaction between the appellant and members of the family of PW1.
That, no other member of PW1’s family contradicted the evidence of PW1 whose evidence is direct and positive of personal knowledge of the transaction of land which he (PW1) was involved in with other members of his family.
He submitted that all the transactions were in the presence of PW1 and PW2, PW3 and PW4, yet the trial court declared exhibit P2 invalid and not signed by the head of family Michael Ibenwa (Senior) and another principal member (Jerome Ebunam).
Learned counsel for the Appellant submitted further that the appellant made a property survey plan of the land in 1992 was shown in exhibit P3 with survey Plan No. A10/AN87/92. That, the making of the property survey plan and entry of the land without challenge when Michael Ibenwa (Senior) was alive as well as chief Nwabunike Anachuna (the defendant’s/respondent’s predecessor-in-title) was not taken into consideration in the finding of fact that such act of making the property survey plan and laying of survey beacons constitute acts of possession which acts the Respondent’s purported predecessor-in-title did not challenge from 1992 until his death in 2003, are sufficient to show that both the native law transaction and exhibitP2 and P3 are valid.
Counsel submitted that Jerome Ebunam was alive and he did not sue nor void the transaction, this showed that Jerome Ebunam accepted the transaction as given in evidence by PW1 and reduced into writing in exhibit P2. That, being a customary transaction, there were witnesses who testified that they were present when the transaction took place and the customary gifts brought by the appellant to Umuananyonwu family of Obosi as consideration for the purchase of the land inclusive of PW1 and the appellant.
He argued that Exhibit P2 was tendered as a receipt and not as a document effecting interest in land. If exhibit P2 was tendered as a Deed of conveyance, it would have been inadmissible being a document affecting interest in land. But, that the trial Judge treated exhibit P2 as a document affecting interest in land and declared same as not having been executed with the consent of the principal members of Umuananyonwu family.
Counsel submitted that only the Umuananyonwu family can challenge the transaction in respect of sale of land in 1978 or as reduced into writing in 1992 and surveyed in exhibit P3 in 1992.
Counsel submitted that no single witness was called by the Respondent from Umuananyonwu family of Obosi to contradict the evidence of PW1 that both himself and Michael Ibenwa signed exhibit P2 and that although Jerome Ebunam did not sign exhibit P2 because he was a police officer serving in Sapele, he (Jerome Ebunam) accepted the transaction and sale of land as reduced into writing in 1992 in exhibit P2.
Also, that as at the time of the death of Jerome Ebunam in 2001, the said Jerome Ebunam did not challenge the transaction and sale to the Appellant.
Learned counsel for the Appellant concluded Issue No.1 by stating that for a sale of land under the native law and custom to be valid, purchase receipt of documents are not needed. Such purchase receipts and memorandum, only facilitate and support a case of a party when the party has established a valid sale under native law and custom viz;
(a) payment of purchase Price.
(b) Purchaser was let into possession by the vendor. See exhibit P3 the Survey Plan and Sketch Plan (exhibit P1 and P1A).
(c) In the presence of witnesses. See the evidence of PW1, PW2, PW3 and PW4.
He submitted that there was therefore no basis for the holding by the court that exhibit P2 was invalid by reason of Jerome Ebunam not signing same when same was not declared invalid nor successfully challenged as invalid by any member of the Umuananyonwu family nor by Jerome Ebunam and no such claim to declare exhibit P2 invalid was before the court.
On Issue No. 2, learned counsel for the Appellant submitted that the respondent in the Statement of Defence and Counter Claim in paragraph 21 at pages 216 and 217 of the record of appeal introduced forgery and pleaded that exhibit P2 which is the memorandum of customary grant of land pleaded by the Appellant is a forged document.
Counsel submitted that the particulars of forgery was given in paragraphs 21(a) (b)(c) and (d) and that the Respondent called it title document, which error the learned trial judge fell into the treatment of exhibit P2.
Learned Appellant’s counsel submitted that the written deposition of Julius o. Anene (Dw4) at pages 154 and 155, paragraphs 19, 20, and 2l of the record of appeal as it relates to paragraph 21(a) (b) (c) (d) is hearsay evidence, being what he was told by Michael Ibenwa. That, it cannot be used to establish the truth that Michael Ibenwa denied exhibit P2. He referred to Section 77(a)(b) and (c) of the Evidence Act Cap 112 LFN 1990 and the case of Ezemba v. Ibeneme (2004) 14 NWLR (Pt. 894) 617. That he (DW4) under cross-examination admitted that he does not know about the suit and was not in court nor attended any court in respect of Suit No. HID/120/2004.
Counsel submitted that the evidence of DW4 cannot be used to hold as true the challenge of exhibit P2 nor hold that exhibit P2 was forged.
He submitted that with the failure of the Respondent to call Michael Ibenwa Junior whose written deposition is at pages 159 to 162, no other person was in a position to challenge the signature of Michael Ibenwa or testify from personal or direct knowledge about the alleged forgery of exhibit P2. That, there was therefore no direct or positive evidence from any member of Umuananyonwu family in support of the allegation of forgery of exhibit P2 by PW1 or the Appellant and thereby give life to the particulars of the forgery as pleaded by the Respondent.
Counsel submitted that at page 370 of the record of appeal, DW4 repeated his hearsay evidence under cross examination and stated thus:
“I took the document used for the sale to the plaintiff to Michael Ibenwa who denied signing it. He later sued the plaintiff over the matter but died before the matter could be determined.”
Learned counsel for the Appellant submitted that assuming that it was Michael Ibenwa (senior) that filed the suit, the suit was not heard, the allegation was not established and the forgery was not established in the said suit purportedly filed by Michael Ibenwa (senior). Clearly, said counsel, the issue of forgery was not established as required by law by the Respondent. Also, the issue of whether PW1 signed exhibit P2 alone or without the consent of members of Umuananyonwu family was not determined by any court nor in suit No. HID/120/2004 before the subject of this appeal.
He submitted that DW4 also stated at page 370 under cross-examination:
“I am not sure if Henry Ebunam was joined as a party to the suit. Michael Ibenwa told me that the plaintiff had offered him money to sign the agreement. I do not know if the case which he file d against the plaintiff was continued after his death. I did not see the court process in that suit and so do not know who was or who was not served”.
The court, said counsel, relied on hearsay evidence as proof of forgery.
Counsel argued that exhibit P9 is the claim in suit No. HID/120/2004. That, PW1 was not made a party thereto. The Appellant was not served with exhibit P9 and there was no proof that the Appellant was served. Even DW4 stated that he does not know those who were parties and those who were served with suit No. HID/120/2004 which he had not even seen. Furthermore, said counsel, the Appellant averred in his reply to Statement of Defence and Counter Claim and further additional depositions that he was not aware nor was he served with exhibit P9 (that is suit No. HID/120/2004). He queried, where then was the basis of holding that the transaction in exhibit P2 was challenged.
Counsel submitted that apart from denying the averment as to forgery in the Reply of the Plaintiff/Appellant to the Statement of Defence and Counter Claim, the additional written statement on oath of PW1 at page 254 of the record of appeal, in paragraphs 15, 16, 17 thereof, the PW1 insisted that his uncle Ikeneme Michael Ibenwa signed exhibit P2 in his presence and that he is quite familiar with his signature.
The above evidence, said counsel, was not contradicted by any member of PW1’s family. The important thing being that there was a denial of forgery of exhibit P2 by PW1 and PW4 (the Appellant).
Counsel submitted that the reasons for the absence of Jerome Ebunam was given and was not contradicted by any member of PW1’s family.
The absence of Jerome Ebunam and the absence of his signature do not make exhibit P2 a forged document. At worst, said counsel, exhibit P2 will be liable to be set aside if challenged by Jerome Ebunam on grounds of lack of consent by the absence of his name and signature in exhibit P2. No such challenge of exhibitP2 was made by Jerome Ebunam from 1992 until his death in 2001.
He submitted further that the admission of PW1 that Jerome Ebunam did not sign exhibit P2 was not an admission that exhibit P2 was forged nor did it disclose a criminal intention within the definition of false document and forgery in section 432 and 436 of the Criminal Code Laws of Anambra State in the Revised Law of Anambra State 1991.
Counsel argued that on the state of evidence, there was proof that Michael Ibenwa signed exhibit P2 and there was no direct and positive proof that Michael Ibenwa did not sign exhibit P2. No handwriting expert was brought to compare the signature in exhibit P2 and P8.
Counsel referred to the cases of Alake v. State (1993) 9 NWLR (Pt. 265) 260 at 270.
R.v. Kuree 7 WACA 175.
Wambai v. Kano N.A. (1965) NMLR 15 and submitted that it is the law that the person whose signature is alleged to have been forged is a vital and material witness and that the failure of the prosecution to call such a person as a witness is fatal to the case.
There is no way it can be held, said counsel, that exhibit P2 told a lie about itself or made with intent to defraud or with intent to deceive without members of Umuananyonwu family coming to give evidence that the head of family did not sign exhibit P2 and the signature of exhibit P2 is not that of Michael Ibenwa (senior). That, DW1, DW2, DW3, DW4 and DW5 all admitted under cross-examination that they were not present when exhibits P2 and P8 were made.
Their evidence in respect of exhibit P2 and P8 remained therefore hearsay evidence and cannot be relied upon to prove forgery or to prove anything about exhibits P2 and P8.
Learned counsel for the Appellant reiterated the ingredients of the offence of forgery as stated in the cases of Babalola v. State (1989) 4 NWLR (Pt. 115) 264 at 277 and Abadom v. State (1997) 1 NWLR (Pt. 479) 1 where the courts held in reference to forgery that the prosecution must prove.
(a) That there was a document in writing.
(b) That the document or writing is forged.
(c) That the forgery is by the accused person.
(d) That the accused intends that the document or writing is false.
(e) That the accused intends the forged document to be acted upon to the prejudice of victim in the belief that it is genuine.
He submitted that on the state of evidence before the court and in particular the evidence of PW1, PW4, PW5 and DW4, no forgery of exhibit P2 was established.
Learned counsel for the Respondent reacted to Appellant’s Issue’s Nos. 1 and 2 in his Issue No.1.
He reproduced paragraphs 4, 5, and 6 of the Appellant’s Statement of Claim and submitted that the Appellant deposed in accordance with those paragraphs that he purchased the land in dispute from the principal members of the Umuananyonwu family on or about 14/1/1978. And that the customary law transaction was reduced into writing in 1992 via exhibit P2.
Counsel submitted that what is clearly on the surface of the Appellant’s pleading and evidence is that the head of family was not part of those who allegedly sold the land to the Appellant on or about 14/1/78. That, the land in dispute had earlier on the 7th day of July been sold to Chief Nwabuike Anachuna (the Ajie of Obosi). That, the transaction was reduced into writing on the 10th day of July, 1977.
That, this transaction was carried out by the head of family and principal members of Umuananyonwu family in favour of the said Chief Nwabuike Anachuna. Michael Ibenwa was the head of the family in 1977 and remained so till his death in August 2004. No member of the Umuananyonwu family challenged the transaction. Chief Nwabuike Anachuna transferred the land in dispute to the Respondent. That, by 1978, Umuananyonwu family had no interest left in the land in dispute to transfer to the Appellant. It is therefore not surprising that the Appellant carried out the alleged sale transaction with the principal members of the family. The names of the principal members of the family who carried out the sale transaction in 1978 remained a subject of conjecture as no name was pleaded and none was given in evidence.
Counsel submitted that the Appellant also failed to plead the names of the witness who witnessed the sale of land to him and transfer of possession. Even the principal members who were present and participated in the alleged sale transaction of 1978 were kept in the dark and their names were not pleaded,
Counsel argued that the effort made by the Appellant by introducing evidence that a memorandum was signed by Michael Ibenwa (Head of family, now late) and Henry Onwura Ebunam when the native customary law transaction of 15/3/78 was reduced into writing suffered two fatal blows.
Firstly, that, Michael Ibenwa, who had been head of family of the Umuananyonwu family before 1977 saw the Memorandum allegedly made by the Umuananyonwu family with him as the head of family and the Appellant (Exhibit P2). Michael Ibenwa challenged the document Exhibit P2 and proceeded to file a suit seeking to set aside Exhibit P2 on the ground that he was not part of the transaction and that he did not sign the Memorandum. The suit, said counsel, was tendered as Exhibit P9, a month after the suit was filed, Michael Ibenwa died.
Secondly, that, Mr. Henry Onwura Ebunam who testified as PW1 at pages 346 – 352 of the record, was cross-examined as to the validity of deeds made by the family. At pages 349 – 350 of the record, he testified thus:
“….Messrs Michael Ibenwa, Jerome Ebunam and myself signed Exhibit P8 on behalf of my family. In my family, a deed to be valid and binding in my family must be signed by the head of the family and two principal members of the family. Otherwise, the document is invalid. I have seen Exhibit P2. Only 2 members of my family signed it. I know Jerome Ebunam. He is a principal member of our family. He died around 2001. He was alive hate (sic) hale and hearty in 1992. He did not sign Exhibit P2. That was because he was a policeman serving at Sapele at that time”.
Counsel submitted that PW1 admitted that for a deed to be valid, it must be signed by the head of family and two principal members. Exhibit P2 was signed by only 2 members of the family.
Counsel argued that by not pleading the involvement of Michael Ibenwa, the head of the Umuananyonwu family, in the purported sale of the land in dispute to the Appellant, the Appellant tactically had admitted that the head of Umuananyonwu family was not part of the purported sale of the land in dispute to him.
He submitted that whilst the sale of family land by the head of family is not void but voidable at the instance of the non-consenting members of the family, the sale of family land by principal members without the consent of the head of family is void.
On this, counsel referred to the cases of Onayemi v. Idowu (2008) 9 NWLR (Pt.1092) 306 at 330, and Ekpendu v. Eriko (1959) SCNLR 186.
Counsel submitted that at page 391 of the record, the trial court held that Exhibit P2 was a forged document and was also invalid. That, at no part of the judgment did the trial court set aside the said Exhibit P2. That, the argument of the Appellant that the trial court is not a Father Christmas to have proceeded to grant an order to set aside the document is merely academic as it is not borne out by the records. Also, that at paragraph 4.11 of the Brief of Argument, the Appellant appeared to be making efforts to find an answer to the problem created by PW1 in his answer that for a Deed to be valid in the family it must be executed by the head and 2 principal members of the family. That, the Appellant now argues that the answer was only with respect to a “Deed”. That according to the Appellant, it did not apply to Exhibit P2 which is a Memorandum of Customary Grant of Land.
Respondent’s counsel submitted that this argument is far from the clear evidence of the PW1 who noted that before a Deed would be valid, it must be signed by the head and two principal members of the family. PW1 knew that Exhibit P2 was a Deed.
This is the reason PW1 proceeded to explain why the 3rd member of the family did not sign the document Exhibit P2 as according to him the 3rd member Jerome Ebunam was in Sapele.
Counsel submitted that the Appellant never gave evidence that the documents Exhibit P2 did not qualify to be signed by three family members, not being a deed. That, it is the oratory of the Appellant’s counsel that introduced the twist into the case.
Counsel referred to the cases of Olaniyan v. Adeniyi (2007) 3 NWLR (Pt. 1020) page 1 at page 23 and Obodo v. Olomu (1987) 3 NWLR (Pt.59) 111 and submitted that it is trite that argument of counsel cannot take over the role of facts in the case.
Learned counsel for the Respondent, then referred to the definition of “Deed” in The Black’s Law Dictionary, Eight Edition at page 444 and said that Exhibit P2 qualifies as a Deed and that the PW1 did not make any pretensions about that fact.
Counsel submitted that it was PW1 himself, d member of the Umuananyonwu family who stated that for a Deed to be validly executed in the family, it must be executed by the head and two principal members. The Appellant has introduced evidence by himself that Exhibit P2 was only signed by two principal members. The trial judge was perfectly in order from the stream of evidence to declare Exhibits P2 as having not been executed with the consent of the head and principal members of Umuananyonwu family.
On Issue No. 2, learned counsel for the Respondents submitted that in paragraph 21 of the Statement of Defence at pages 216 – 217 of the record of appeal, the Respondent introduced the issue of forgery of Exhibit P2. The Respondent gave particulars of forgery as follows:-
i. Michael Ibenwa whom the Plaintiff alleged to be his landlord denied knowledge of the document.
ii. Michael Ibenwa filed a claim against the Plaintiff and said that the document was not his act and asked the court to declare it void and of no legal effect same being a forged document.
iii. Any document evidencing disposal of land by Umuananyonwu family must be signed by the head and two principal members of the family. The Plaintiff s document was not so signed.
iv. As at 1992, Jerome Ebunam ) a principal member of the family was still alive. He was not a signatory to the purported document.
The Respondents, said counsel, called evidence in proof of the particulars of forgery with respect to Exhibit P2. But, that the Appellant has singled out the evidence of DW4 for attack on the ground that his testimony as to what Michael Ibenwa said about Exhibit P2 is hearsay.
Counsel argued that the Appellants while relying on Section 77 of the Evidence Act (Cap. 112, LFN 1990) contends that the evidence of DW4 to the effect that he took Exhibit P2 to Michael Ibenwa who denied that he made the document or that he was a parry to the making of the document is hearsay. Respondent’s counsel submitted that the evidence of DW4 as it relates to what transpired between him and the said Michael Ibenwa with respect to Exhibit P2 is not hearsay but direct oral evidence or account of what happened in the presence of DW4. This, counsel said, is the exact requirement of Section 77(a) and (b) of the Evidence Act Cap. 112 LFN 1990. That, it is the person who saw or heard the fact in issue that the law required to have and give testimony of what he heard and saw. That, the DW4 saw and heard Michael Ibenwa deny that Exhibit P2 was his document. DW4 can validly give evidence of that fact without being caught up by the hearsay evidence rule.
Counsel submitted that the Appellant at the end of the day was unable to prove that there was actually a sale to him under native law and custom, even the witness called by the Appellant who said he was present at the sale (Emma Anyaneto, PW3) and also declared that he was a principal member of the family did not sign as a principal member in Exhibit P2.
That, it was during cross-examination that the veil was removed, PW3 unmasked as a non-member of the Umuananyonwu family of Obosi.
Counsel submitted that it was from the totality of evidence presented to the trial court that Jerome Ebunam did not sign the document Exhibit P2, or that the head and two principal members of the family did not sign Exhibit P2 that made it invalid in line with the testimony of PW1. That, the trial court was perfectly in order when it made a finding that Exhibit P2 was invalid.
He submitted further that on the other hand, Exhibit P2 was declared as a forged document on the ground that it contained a signature purportedly signed by Michael Ibenwa who upon becoming aware of the existence of Exhibit P2 in 2004 not only denied the document in the presence of DW4 but also proceeded to challenge the authenticity of the document in court in Exhibit 9. That, it is therefore not correct to contend as the Appellant is doing that there is no way it can be held that Exhibit P2 told a lie about itself or made with intent to defraud or with intent to deceive without members of Umuananyonwu family coming to give evidence that the head of family did not sign Exhibit P2 and the signature in Exhibit P2 is not that of Michael Ibenwa (Senior).
He submitted that the Supreme Court decision in Babalola v. State (1980) 4 NWLR (Pt. 115) 264 at 277 referred to (supra) by the learned counsel for the Appellant does not help the case of the Appellant.
He urged us to hold that Exhibit P2 was an invalid and forged document and to resolve Appellant’s issues Nos. 1 and 2 in favour of the Respondent.
There are now two sides in the resolution of Appellant’s Issue No. 1. The first is the attempt by the learned counsel for the Appellant to convince us that the customary sale of land transaction between the Appellant and the Umuananyonwu family that took place in 1978 was valid, binding and subsisting irrespective of and notwithstanding Exhibit P2. By this argument, the Appellant maintained that Exhibit P2 was at best an unnecessary surplausage to the validity of the sale of land under native law and custom that took place in 1978 between the Appellant and the Umuananyonwu family.
In appraising this line of argument by the Appellant, it is only appropriate once again to turn the searchlight into the pleadings and evidence of the Appellant in proof of the sale of land under native law and custom.
In line with paragraphs 4, 5 and 6 of his Statement of Claim, the Appellant in his Evidence in chief (statement on oath) at page 113 of the record witnessed as follows:-
“4. On or about 14/1/78, I bought the above said land now in dispute from the principal members of Umuananyonwu sub-family of Umunnakwu family Okpuno, Ire village Obosi.
“5. On or about 15/3/78, I performed the customary rites of alienation of land in accordance with the native law and custom of Obosi Community. I did this by killing a goat, offering some tubers of yam, kolanuts, assorted beers and hot drinks. The ceremony and gifts signify an outright transfer of ownership and possession of title to land in Obosi Community. The ceremony was performed in the presence of members of Umuananyonwu sub-family of Umunnakwa family Okpuno Ire Village Obosi and the ceremony was chaired and directed by the principal members of the family.
6. On or about 24/2/92, the native customary law transaction of 15/3/78 was reduced into writing by way of memorandum recording the said grant of land to me by members of Umuananyonwu sub-family of Umunnakwa family Okpuno, Ire village Obosi. The memorandum was signed on behalf of the Umuananyonwu sub-family by Michael Ibenwa (Head of family now late) and Henry Onwura Ebunam (Principal members of the family). I rely on the memorandum of customary grant of land dated 24/2/92 prepared for us by Barrister Chukwudi Charles Okaa, which memo is part of the documents in evidence in this case”.
The Appellant witnessed further in paragraph 8 of his statement on oath:
”On or about 14/1/78 the members of Umuananyonwu sub-family delegated about 3 members of their family including Henry Onwura Ebunam who later signed the memorandum of the grant and the 3 of them took me to the land and showed me the boundaries extent, size and location of the land. I also asked boundary neighbours including Mr. Edwin Okoye and Augustine Iwuegbuna and satisfied myself that the Umuananyonwu sub-families are the owner of the land. After the inquiries, I then made a payment of N50,000.00 to the family. I rely on the memorandum recording customary grant of land to me dated 21/2/92 to show evidence of payment of the above stated sum of money to the family “.
Now, outside of paragraph 6 of the Appellant’s pleadings which pleaded exhibit P2 or outside of exhibit P2 itself it could not be said from the pleadings and evidence of the Appellant that there was a valid sale of land between the Plaintiff/Appellant and the Umuananyonwu family under native law and custom in 1978.
First, even if there was evidence of purchase price, there was no evidence of purchase in the presence of witnesses neither was there evidence that the Umuananyonwu family led the purchaser into possession of the land in dispute.
The Appellants did not plead or give evidence of any witnesses to the transaction of 14/1/1978.
The law is that for sale of land under native law and custom to be valid, it must be proved that:
1. There was payment of purchase price.
2. The purchaser was let into possession by the vendor and the sale was
3. In the presence of witnesses.
See Odusoga v. Rickets (1997) 7 NWLR (Pt. 511) 1.
Cole v. Folami (1956) S.C.N.L.R. 180.
Etajata v. Ologbo (2007) 16 NWLR (Pt. 1061)554.
More importantly the Appellant never for once pleaded nor gave evidence of the participation and/or consent of the then Head of the Umuananyonwu family, Michael Ibenwa to the purported sale of land under native law and custom that took place on 14th January 1978.
It is trite law that a sale of family land by the Head of the family without the consent of the principal members of the family is voidable but a sale of family land by principal members of the family without the consent of the head of the family is void ab initio.
See: Ekpendu v. Erika (1959) SCNLR 186.
Onayemi v. Idowu (2008) 9 NWLR (Pt. 1092) 306 at 330.
In the instant case, the Appellant could not prove that Michael Ibenwa the Head of Umuananyonwu family consented to the sale of the land in dispute to him in 1978, and therefore there was no sale of the land in dispute to the Appellant in 1978.
The second leg of Appellant’s issue NO. 1 is the contention of the Appellant that the learned trial judge was wrong to have held Exhibit P2 invalid.
In this respect, Mr. Henry Onwura Ebunam who testified as PW1 appearing at pages 346-352 of the record was cross-examined and reacted in part as follows, from pages 349 of the record.
“Ans:—–I know Chief Nwabuike Anachuna, Ajie of Obosi, our family sold 8 plots of land to him at Mkputamkpu Ugwu.
Oluluoji: This was in 1992.
Q: Please look at this document.
Ans: I have seen the document. My signature is on the document.
PW1 continues: Messers Michael Ibenwa, Jerome Ebunam and myself signed Exhibit P8 on behalf of my family. In my family a deed to be valid and binding in my family must be signed by the head of the family and two principal members of the family. Otherwise the document is invalid. I have seen Exhibit P2. Only 2 members of my family signed it. I know Jerome Ebunam. He is a principal member of our family. He died around 2001. He was alive, hate (sic) hale and hearty in 1992. He did not sign Exhibits P2. That was because he was a policeman serving at Sapele at the time…………..”
The implication of the above evidence of PW1 is that Exhibit P2 has no probative value. The learned trial judge merely adopted the words of PW1 himself when he said that Exhibit P2 was invalid.
PW1 admitted that for a deed to be valid, it must be signed by the head of family and two principal members, Exhibit P2 was signed by only 2 members of the family.
It was truly from the totality of evidence presented to the trial court that Jerome Ebunam did not sign the document Exhibit P2, or that the head and two principal members of the family did not sign Exhibit P2 that made it invalid in line with the testimony of PW1. The trial court was perfectly in order when it made a finding that Exhibit P2 was invalid.
The suggestion by the learned counsel for the Appellant that the PW1 made reference to a “Deed” and that Exhibit P2 does not qualify, as a “Deed” cannot be sustained.
First, in the con of the evidence of PW1, he actually meant to refer to Exhibit P2 as a Deed evidencing sale of land to the Appellant. Second, for all intent and purpose Exhibit P2 qualifies as a Deed.
The 8th Edition of the Black’s Law Dictionary at page 444 defines a Deed as:
“….A deed is therefore a particular kind of document.
It must be a writing and a writing paper or its like e.g. vellum or parchment. Any instrument under seal is a deed if made between private persons. It must be signed, sealed and delivered. A deed must either (a) effect the transference of an interest, right or property or (b) create an obligation binding on some person or persons or (c) confirm some act whereby an interest right or property has already passed”.
Exhibit P2 clearly qualifies as a deed. It is a writing on parchment paper, signed, sealed and delivered and it purportedly creates a binding obligation between the Appellant and the Umuananyonwu family.
From the evidence of PW1, the trial court discovered that no probative value could be attached to Exhibit P2 and the learned trial judge was perfectly in order to have adopted the words of PW1 himself to say that Exhibit P2 is invalid.
Issue No. 1 is resolved against the Appellant.
On Issue No. 2, I do not think the trial court was right after declaring Exhibit P2 invalid to further say that it is a forged document.
The Respondent in my opinion pleaded the forgery of Exhibit P2 but did not prove same.
In the first place, Exhibit P9 the writ of summons in Suit No. HID/120/2004 was admitted as a public document as process in a suit between Michael Ibenwa and the Appellant. It was only Michael Ibenwa himself or the counsel that filed the process that could categorically say that Exhibit P9 was the action of Michael Ibenwa. In the absence of such evidence, Exhibit P9 per se is documentary hearsay of the fact that Michael Ibenwa denied his involvement or signature in Exhibit P2.
Similarly, the evidence of DW4 that he showed Exhibit P2 to Michael Ibenwa and that he denied that he signed same and later commenced an action as per Exhibit P9 is again hearsay. The effort of the learned counsel for the Appellant to bring the evidence of DW4 under the umbrella of the provisions of Section 77(a) and (b) of the Evidence Act Cap. 112 LFN 1990 is misplaced.
DW4 was perfectly in order to narrate to the court what he heard from Michael Ibenwa, but the ‘truth’ of Michael Ibenwa’s denial of his signature on Exhibit P2 coming from the mouth of DW4 is hearsay evidence. The truth of the assertion, that is the denial of the signature of Michael Ibenwa on Exhibit P2 can only be rendered as original evidence by Michael Ibenwa himself.
The rule against hearsay is a rule governing inadmissibility of evidence. It is well stated by the judicial committee of the privy council in Subramaniam v. Public Prosecutor (1965) 1 W.L.R. 965 at 969 thus:
“Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the Statement, but the fact that it was made”.
See also Gilbey v. Great Wester Railway (1910) 102 LJ 202.
Haines v. Guthrie (1884) 13 C B.D. 818.
Section 38 of the Evidence Act 2011 with a simpler but clearly more embracing phraseology merely declares, oral or written statements of persons who are not called as witnesses is hearsay.
In the instant case, neither Exhibit P9 nor the evidence of DW4 can be used to prove the fact that Michael Ibenwa did not sign Exhibit P2. In relation to that fact, Exhibit P9 is documentary hearsay evidence while the oral evidence of DW4 constituted oral hearsay.
Exhibit P9 and the evidence of DW4 were the two species of evidence on which the Respondent in this case relied on to say that the signature of Michael Ibenwa in Exhibit P2 was altered, uttered or forged. Both Exhibit P9 and the oral evidence of DW4 were wrongly admitted to prove that Michael Ibenwa’s signature on Exhibit P2 was forged. In the circumstances, the Respondent could not be said to have proved the forgery of Exhibit P2.
Generally speaking, any alteration of a document is forgery with or without a fraudulent intention, but the offence of forgery is proved when there is alteration or uttering of document coupled with a fraudulent intention. It follows that either in the first, (grammatical) sense, or in the second (legal) sense there could be no forgery without an alteration or uttering of a document.
In the instant case, the Respondent did not prove any uttering or altering of Exhibit P2 and the learned trial judge was in error to have held Exhibit P2 to be forged in addition to been invalid.
I agree with the learned counsel for the Appellant that the admission of PW1 that Jerome Ebunam did not sign exhibit P2 was not admission that exhibit P2 was forged nor did it disclose criminal intention within the definition of false document and forgery in Section 432 and 436 of the Criminal Code Law of Anambra State in the Revised Laws of Anambra State 1991.
I also agree with the learned counsel for the Appellant that there is no way it can be held that exhibit P2 told a lie about itself or made with intent to defraud or with intent to deceive without members of Umuananyonwu family coming to give evidence that the head of family did not sign exhibit P2 and the signature in exhibit P2 is not that of Michael Ibenwa (senior).
Issue No. 2 is resolved in favour of the Appellant.
On Issue No. 3, learned counsel for the Appellant submitted that there was no proof of service of exhibit P9 on the Appellant in the court file or evidence by bailiff in that wise, that in any case, Henry Ebunam (PW1) who was said to have forged exhibit P2 was not sued as a party in exhibit P9.
Counsel recalled that it was the Respondent that introduced the issue of forgery in paragraph 21(a) (b) and (c) of the Statement of Defence and pleaded exhibit P9 with the written deposition of Michael Ibenwa Junior.
He argued that it is with respect absurd for a court to hold that mere filing of a suit which was not served on a party constitutes evidence of a challenge of the transaction in exhibit P2 without regard to the evidence of PW1 that Suit No. HID/120/2004 Exhibit P9 was not filed and could not have been filed by Michael Ibenwa (senior).
He submitted that a challenge of exhibit P2 entails litigation and completion of the litigation by the head of the family or the entire family and the finding in favour of the person challenging exhibit P2 that it was not signed by the head of the family. No judgments, he said, was obtained based on exhibit P9. No finding of fact was made by any court based on exhibit P9. Exhibit P9 is relevant only when a judgment based on exhibit P9 has been obtained or when there is evidence that exhibit P9 is being prosecuted.
Counsel submitted that to have held as the trial judge did that exhibit P9 constitutes a challenge of exhibit P2 and evidence of forgery or exhibit P2 is with respect to the trial judge passing or giving judgment in Suit No. HID/120/2004 (exhibit) P9 which is not before the court nor was served on the Appellant and without opportunity for the defence of Suit No. HID/120/2004, contrary to the spirit of the 1999 Constitution of Nigeria.
Learned counsel for the Respondent reacted to Appellant’s Issue No.3 in his Issue No.2. He submitted that the Appellant appears to have left the substance of the Issue raised which is whether exhibit P9 is sufficient proof that Michael Ibenwa challenged Exhibit P2 to argue about whether the Appellant was served Exhibit P9. He submitted that what constitutes an existence of a suit is the fulfillment of all that is required for a Plaintiff to commence a suit.
He referred to the cases of Ukpabio v. NFVCB (2008) 9 NWLR (Pt. 1092) 219 at 244.
Fada v. Naomi (2002) 4 NWLR (Pt. 757) 318 and Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) 387 that, where a suit has been commenced, as in the instant case, whether the suit has been served or not cannot effect the fact that it has been commenced.
Counsel submitted that in the first place, the Appellant whose duty it was to call Michael Ibenwa (Junior) to establish that Michael Ibenwa (Junior) filed the suit instead of his father refused to do so.
He argued that whether Michael Ibenwa who filed the suit in Exhibit P9 served the suit or not has nothing to do with the bold statement made in challenge of Exhibit P2. And, that, whether any other step was taken or not is also of no moment. This, counsel said is because a challenge does not entail the completion of litigation but rather a party is deemed to have engaged in a “challenge” of something once there is invitation of summon to a match , game or duel or one disputes the truth of the subject matter.
He urged us to hold that the institution of suit No. HID/120/2004, Exhibit 9 constituted an effective challenge of the act in Exhibit P9 and resolve the Issue in favour of the Respondent.
I have already provided an answer to Appellant’s Issue No. 3 in my treatment of Issue No. 2. Exhibit P9 was not sufficient proof that Michael Ibenwa (senior) challenged exhibit P2 simply because, Exhibit P9, itself a writ of summons which does not carry the signature, identity or any link with Michael Ibenwa (senior) cannot be said by the mere mention of the name Michael Ibenwa be taken as proof that Exhibit P9 was the action of Michael Ibenwa. To prove that the writ of summons Exhibit P9 was the action of Michael Ibenwa, his testimony or that of counsel that filed the writ in Suit No. HID/120/2004 would be required.
The insufficiency of Exhibit P9 to prove the denial of Exhibit P2 by Michael Ibenwa (senior) does not lie in the failure of either of the parties to call Michael Ibenwa (Junior) to testify in favour or against the facts contained in Exhibit P9. (The testimony of Michael Ibenwa (Junior) could not have improved the status of Exhibit P9 having not been proved to be the action of Michael Ibenwa (senior) or its status on the alleged denial of Exhibit P2 by Michael Ibenwa (senior) who was not called as a witness as documentary hearsay evidence.
However, the fact that Exhibit P9 remains a writ of summons which did not lead to any court judgment on the Issue of the denial of Exhibit P2 by Michael Ibenwa (senior) supports the case of the Appellant that the document Exhibit P9 could not establish a case of forgery of Exhibit P2 as held by the trial court.
Issue No. 3 is resolved in favour of the Appellant.
On Issue No. 4, learned counsel for the Appellant adopted his earlier arguments on Issues Nos . 1, 2 and 3 in support of Issue No. 4.
Learned counsel for the Respondent reacted to Appellant’s Issue No. 4 in his Issue No. 6.
He repeated the argument that under cross-examination the PWI was shown exhibit P8 appearing at page 349 of the Record and asked whether he had seen the document. The PW1 answered that he had seen the document before and his signature is on the said document. That, Exhibit P8 is memorandum of customary grant in which the Appellant’s Umuananyonwu family recorded the grant to Chief Anachuna of 8 plots of land shown in exhibit P8 as 10, 12, 14, 16, 17, 18, 19 and 20.
The memorandum Exhibit P8 stated on its face that it was made in 1977.
Counsel submitted that once it is shown that plots 17 and 18 were among the plots of land granted to Chief Anachuna in 1977, then in that case the Umuananyonwu family that granted the land in 1977 lost the power to grant the same land again to any other person.
Counsel submitted that the trial court made a finding that plots 17 and 18 were part of the plots of land sold to Chief Anachuna by the Umuananyonwu family as recorded in exhibit P8 in 1977.
In deciding Appellant’s Issue No. 4, I must first note that the adoption of the arguments on Issues Nos .2 and 3 are not relevant to the consideration of Issue No. 4.
Second, I have provided an answer to Appellant’s Issue No. 4 in my treatment of Issue No. 1.
The learned trial judge was perfectly in order in holding that the land in dispute was never sold at anytime to the Appellant by the Umuananyonwu family and that the act of the Appellant on the land was an act of trespass.
In the first place, as I pointed out in the treatment of Issue No. l, which reasoning and I now adopt, the Appellant did not establish any sale under native law and custom of the land in dispute to him by Umuananyonwu family in 1978. Also, by the testimony of PW1, the current head of the Umuananyonwu family said the memorandum of grant of the land in dispute to Respondent’s predecessor in title Exhibit P8 was validly executed by his family, the memorandum of grant of land Exhibit P2 purportedly executed in favour of the Appellant could not be said to have any probative value as it does not conform with the internal rule of sale of land of the signature of the head of the Umuananyonwu family and two other principal members as enunciated by the PW1 himself.
Thus, borrowing the language of PW1 himself, the trial court declared Exhibit P2 invalid and upheld the validity of Exhibit P8. In any event, after the PW1 himself has recognized the authenticity of Exhibit P8 made in 1977 by his family in favour of the Respondent’s predecessor in title, and which on its face contains the sale of eight plots of land as acknowledged by PW1 but which also includes plots 17 and 18 in dispute. It could no longer be valid for the Umuananyonwu family to carry out the sale of plots 17 and 18 which had been disposed to the Respondent’s predecessor in title in 1977 to the Appellant in 1978. This, simply on the basis of nemo dat quod non habet.
The trial court was right to hold that the Appellant had no title at all over the land in dispute as the Umuananyonwu family had already divested itself of title over plots 17 and l8 before any purported sale of the same plots to the Appellant.
Issue No. 4 is resolved against the Appellant.
On Issue No. 5, Learned counsel for the Appellant argued that the disbelief of the evidence of PW1 was aimed with due respect to the learned trial judge to pave way for undeserved judgment in the counter claim of the Respondent.
Learned counsel for the Appellant raised the following queries:
(a) How was the evidence of PW1 as Community leader and head of family and the eldest member of the family as at the time he gave evidence in the above suit be false as found by the trial judge.
(b) How was the evidence that it was the respondent that simulated Suit No. HID/120/2004 through Michael Ibenwa (Junior) rebutted and rendered false.
(c) How come the evidence of PW1 that he knows the land in dispute is false and that he signed both exhibits P2 and P8 as principal member of the family and as shown in exhibits P2 and P8 false and not worthy of believe.
(d) How come that the signatures which PW1 said he signed in the Agreements of 1977 and 1978 (exhibits P8 and P2) false, when both parties agreed that PW1 signed P8 and P2.
(e) How come that the evidence of PW1 that the Umuananyonwu family had only 20 (twenty) plots and as laid out in the sketch plan made in 1992 and tendered as exhibits P1 and P1A by PW1 be false when even the parties admitted the existence of exhibits P1 and P1A which was in existence believed by the trial court.
Counsel submitted further that PW1 identified the 8 (Eight) plots of land sold to Chief Nwabuike Anachuna as plots 6, 8, 10, 12, 14, 16, 19 and 20 on the right side of exhibits P1 and P1A whilst Plots 17 and 18 on the left side of exhibits P1 and P1A were the plots sold to the Appellant.
Counsel submitted that the evidence of PW1 that he was mandated by his family to testify and represent the family was not discredited. That the learned trial judge isolated an incidence which no doubt arose from a misunderstanding of the documents to hold, that PW1’s entire evidence is not worthy of belief, based on the cross-examination of PW1 where he stated at page 348 of the Record that the 8 plots of land was sold to Chief Nwabuike Anachuna was in 1992 and not 1977. That, in the first place, PW1 admitted he signed the Memorandum of Customary Grant of Land in 1977 made by the family for Chief Anachuna and tendered as exhibit P8 through PW1.
That, PW1 also admitted that he signed exhibit P2 made in 1978 by PW1’s family in favour of the Appellant.
Counsel submitted that PW1 also tendered exhibit P1 and P1A to show that the sketch plan of the land was finally produced in 1992. The evidence is no more than it was in 1992 and not 1977 nor 1978 that the dimensions, sketch and boundaries of the land was made in sketch Plan Nos. P1 and P1A.
The Respondent did not challenge the evidence of PW1 that exhibits P1 and P1A were made in 1992 and not 1977.
Also, that the memorandum in exhibit P2 also showed that survey plan attached thereto and tendered as exhibit P3 was made on 24/2/92 following the sketch (exhibit P1 and P1A) and contemporaneous with the sketch plan.
Counsel submitted that no such identity as above exists in exhibit P8 except the plots typed in Electric Machine character different from the character of the other typed alphabets in exhibit P8.
He submitted that the evidence of PW1 as it relates to the sale of land in 1977 and making of exhibits P1 and P1A in 1992 is not upon a calm and rational appreciation a contradiction or inconsistency. It would have been a contradiction and serious, if PW1 had denied exhibits P2 and P8 made in 1978 and 1977 respectively.
Counsel submitted that all that PW1 meant and still mean is that it was in 1992 based on the sketch plan in exhibits P1 and P1A that the basis of the ownership of each of the plots in dispute determined as to the proper dimension and size of the land. Further, that since the evidence of PW1 that exhibits P1 and P1A were made in 1992, the insertion of Plots 10, 12, 14, 16, 17, 18, 19 and 20 in exhibit P8 in 1977 cannot be true.
Counsel said the only way the trial judge found as a cover to be used against the Appellant was to reject in its entirety the evidence of PW1.
The Respondents to this case, said counsel, still relied on exhibits P1, P1A, P2 and P8, just like PW1 and the Appellant.
Counsel submitted that it is the evidence of PW1 that is the only direct evidence of the land transaction in exhibits P2, P8 and P1 and P1A. Further, that while the Appellant established sale of land under customary law, no such evidence was given in favour of the Respondents.
Therefore, said counsel, it stands that if PW1 is discredited there is no evidence in support of the counter claim of the Respondent. The trial judge was therefore wrong in giving judgment in respect of the counter claim of the Respondent.
Counsel submitted that the real Issue in dispute is to whom were plots 17 and 18 in exhibits P1 and P1A sold to. There was no survey plan tendered by the Respondent as to the land sold in 1977 to his predecessor in title nor was any such plan of the Respondent’s predecessor in title tendered throughout the proceedings by the Respondent.
Counsel referred to the cases of Awoyele v. Ogunbiyi (1986) 4 SC 98 at 131 and Ajadi v. Okenihun (1985) 1 NWLR (Pt. 3) 484 and submitted that it is the law that the Appellate court will not interfere with the findings of fact made by a trial judge. However, where the appellate court finds from the evidence before the court that, the finding of the trial judge is wrong and could not ordinarily have been based on the evidence before the court, the Appellate court will interfere with such findings of the trial court.
He submitted that on the basis of the documents tendered by PW1 and through PW1 by the Respondents, it is clear that PW1 was a witness of truth. That, there was no basis for branding PW1 as untruthful witness nor was there any basis to discredit in toto the entire evidence of PW1 as the learned trial judge did.
Essentially, the learned counsel for the Respondent reacted to Appellant’s Issue No. 5 in his Issue No. 3.
Learned counsel submitted that the trial court was right when it made the finding that Michael Ibenwa (Junior) could not have filed a suit to urge the court to hold that Exhibit P2 is forged when he never claimed that he signed Exhibit P2. That, neither did anyone claim that Michael Ibenwa (Junior) signed Exhibit P2.
Counsel submitted that PW1 gave evidence that Umuananyonwu family had only 20 plots of land laid out in sketch Plan made in 1992 and tendered Exhibit P1 and P1A. That, the Appellant is contending that the trial court ought not to have discredited the evidence of PW1 on account of foregoing evidence from the PW1. But, that a close look at the plan shows that the plan was not dated and it was not pleaded as to when the plan was made.
That, it must also be noted that the Appellant and PW1 said that it was from the sketch plan that all the plots of land were sold.
The pertinent question, according to counsel becomes, how could a plan made in 1992 be used to sell plots of land allegedly sold in 1978? This question and the answer according to counsel remained subject of conjecture leaving the trial court to no option than to discredit the evidence of PW1.
Counsel submitted that DW3 does not need to give evidence of his purchase from Chief Anachuna under native law and custom or any other method to entitle him to testify in this suit. That, the Appellant’s argument as to whether any survey plan was tendered or produced by the Respondent is of no moment. Also, that DW2’s land is not in dispute in this case for the purpose of requiring him to establish the incidences of customary sale of land. The Appellant did not oppose or introduce evidence to the contrary that Chief Anachuna never sold any of his plots to DW2. And, that the Appellant who asserts that plots 6 and 8 were the plots sold to Chief Anachuna failed to discharge the burden whilst exhibit P8 which recorded the transaction is saying a different story.
Counsel submitted that it is trite that it is the obligation of the trial court to evaluate evidence and attach credibility to the evidence of witnesses before it having the benefit of seeing first hand the demeanour of witnesses in the cause of trial. That, it was in exercise of that basic judicial function that the trial court declared the PW1 as an untruthful witness. He submitted that the Appellate Court loathe to venture into the region of ascribing or assessing the credibility of witnesses having not the same opportunity like the trial court of watching the demeanour of witnesses like the PW1.
The Appellant, said counsel, has failed to show that the finding of the trial court in that respect is perverse to entitle the Appellate Court to interfere with the said finding.
Counsel concluded that the finding of the trial court that the evidence of PW1 was discredited and that he is not a witness of truth is borne out by preponderance of evidence before the trial court and also close watch from the demeanour of the PW1 by the trial court.
In deciding Appellant’s Issue No. 5, it became obvious from the submissions that the learned counsel for the Appellant himself finds it somewhat difficult to appreciate the distinction between an assertion and proof.
An assertion is an allegation, averment of a factual situation or position, for an assertion to be elevated to the category of proof or belief it must be supported by relevant and concrete oral and/or documentary evidence. An assertion not supported by proof remained an assertion and a trial judge would not be expected to act on the assertion of allegation of a party in place of evidence or proof. I suppose this is the whole basis of the law of evidence as means of proof.
For example, the Appellant alleged that Suit No. HID/120/2004, Exhibit P9 was simulated by Michael Ibenwa (Junior). How on earth does the learned trial judge believe this evidence from the Appellant without calling the lawyer who filed the writ of summons Exhibit P9 or Michael Ibenwa (Junior) himself.
Again, how does the learned trial judge believe that the 20 plots of land belonging to Umuananyonwu family was laid out in 1992 in Exhibits P1 and P1A when the said Exhibits P1 and P1A as documents do not show any dates on them.
Now, the learned trial judge was right from the totality of the evidence before him to have declared that PW1 is untruthful.
The 6th Edition of the Oxford Advanced Learner’s Dictionary at page 1316 says “Untruthful” is saying things that you know are not true…….”
It was PW1 that said the Umuananyonwu family did not sell any plots of land in 1977. At cross-examination, Exhibit P8 was admitted through him where he admitted his signature as one of those who joined the head of the family to execute a memorandum of grant in favour of the Respondent’s predecessor in title.
It was PW1 who claimed that Exhibits P1 and P1A were the basis for the sale of land to both the Appellant and the Respondent’s predecessor in title. Yet the Appellant and the Respondent’s predecessor in title claimed to have purchased land in 1978 and 1977 respectively while Exhibits P1 and P1A were supposedly made in 1992.
It was PW1 who stated in his deposition, at examination in chief that a Deed to be valid for the sale of land from their family, it must be signed by the head of the family and himself. In another breath under cross-examination, he stated that it must be signed by the head of the family and two principal members before it turned out that Exhibit P2 which he purportedly executed in favour of the Appellant was on its face signed by one or two and not three members of the family. This notwithstanding the Respondent disputes the signature of Michael Ibenwa (senior) on the said Exhibit P2.
Meanwhile, it must be pointed out that the untruthfulness of the PW1 in pursuit of the case of the Appellant has nothing to do with his evidence which was elicited by the Respondent in the course of cross-examination and which supported the Respondent’s case.
For example, PW1 admitted that the Umuananyonwu family sold (8) plots of land to the Respondent’s predecessor in title he admitted his signature on Exhibit P8 and also the regularity and validity of Exhibit P8 as having properly conveyed title to the Respondent’s predecessor in title.
On the other hand, PW1 stated categorically that it was plots 6 and 8 and not plots 17 and 18 (in dispute) that his family sold to the Respondent’s predecessor in title but this assertion or allegation was not proved.
Indeed, in paragraph 8 and 9 of the Reply to Statement of Defence and Counter Claim at pages 228 – 233 of the Record, the Appellant averred that:
8. Paragraph 8 of the Statement of Defence is not true. There was no mistake at all. The Plaintiff aver that the defendant and his cohort, in a bid to fraudulently snatch the Plaintiff’s land ostensibly and knowingly inserted the plot numbers to assist the Defendant in snatching the land in dispute from the Plaintiff. The plots sold to Chief Nwabuike Anachuna by Umuananyonwu family are plots numbers 6, 8, 10, 12, 14, 16, 19 and 20 which plots he (sic) side by side to the plots of land sold to the Plaintiff which are plots No. 5, 7 , 9, 17 and 18.
9. Further to above, the insertion of plot numbers on the memorandum with a different ink from the ink used in typing the memorandum is a deliberate act never a mistake. Lawyers do not make such mistakes”.
The above paragraphs bother on allegation of fraud by the Appellant against the Respondent.
An allegation of crime in a civil action must be proved beyond reasonable doubt.
See Nwobodoh v. Onoh (1984) 1 SCNLR 1.
Samuel Jacob Ikpatt v. Ubong Okon Iyoho & Anor (1999) 7 NWLR (Pt. 609) 58 at 66
John Ogoda v. Chief Emuo Bonuvie Judith Emamuofor (1999) 8 NWLR (Pt. 615) 407 at 419.
The onus of proof of the grievous allegation of crime contained in paragraphs 8 and 9 of the Appellant’s Reply to the Statement of Defence and Counter-Claim could not have been discharged by the mere viva voce insistence of the PW1 that the Umuananyonwu family sold plots 6 and 8 and not 17 and 18 to the Respondent’s predecessor in title, more especially in the face of the documentary evidence.
Exhibit P8 admitted through PW1 himself and which indicated that plots 17 and 18 were amongst the eight (8) plots sold to the Respondent’s predecessor in title in 1977.
In those circumstances, the Appellant did not prove the fraud alleged in paragraphs 8 and 9 of the Reply to the Statement of Defence and Counter Claim.
The learned trial judge was therefore not just justified from the totality of the evidence adduced to say that PW1 is untruthful but also right to have relied on Exhibit P8 in upholding the Respondent’s counter claim on the land in dispute.
Issue No. 5 is resolved against the Appellant.
On Issue No. 6, learned counsel for the Appellant submitted that all through the trial, none of the parties raised the Issue of comparison of the beacon numbers on exhibits P1 and P1A with beacon numbers on any of the plans such as exhibits P3 and P4 of the Appellant and exhibits D1 and D2 of the Respondents.
That, yet the trial judge proceeded in the judgment and in his chambers to hold:
“I have tried to compare the beacon numbers on any of the plans filed by the parties to this suit and they do not match. The plans are exhibits P3, P4, D1 and D2. The dimensions of the land as shown on exhibit
P1 and P1A does (sic) do not match the dimensions given in any of the parties plans”.
Counsel referred to the cases of Duruminiva v. C.O.P. (1961) N.R.N.L.R. 70 at 73 – 74.
Governor Kwara State v. Eyitayo (1997) 2 N.W.L.R. (Pt.485) 118 at 129.
Terab v. Lawan (1992) 3 NWLR (Pt. 231) 569.
Owe v. Oshinabajo (1965) 1 ALL NLR 72 at 75.
Ntuogwuile v. Otuo (2001) 16 NWLR (Pt. 738) 56 at 75 and submitted that the trial judge is not a surveyor. The parties did not join issues on the comparison made by the trial judge.
It was agreed by all the parties that the land in dispute is plots 17 and 18 and it is the same plots that were shown in exhibit P2 of the Appellant and exhibits D1 and D2 of the Respondent.
Counsel submitted that the bias against the Appellant in the investigation of the trial judge and comparison of the plans and holding by the trial judge that they do not match exhibits P1 and P1A which is not the case of the parties ultimately led the trial judge to the erroneous conclusion that plots 17 and 18 formed part of the plots sold to the Respondent’s predecessor-in-title for which mistake was made in exhibit P8 in the insertion of plot numbers instead of survey numbers and beacon numbers.
The Appellant, said counsel, tendered exhibits P1 and P1A, P2, P3 and P4 and stated that they refer to the same land otherwise called plots 17 and 18 in exhibits P1 and P1A. The documents were related in the evidence as contained in the written depositions, further depositions and additional depositions of PW1 and PW4 as well as under cross-examination of PW1. That exhibits P1 and P1A were tendered to prove that plots 17 and 18 in exhibits P1 and P1A are on the ground and the same with the land shown in survey plan tendered as exhibits P3 and P4, D1 and D2 in the property survey beacons and litigation plans.
The land in dispute in the plan was admitted by the surveyor (DW1) to be the same land. The investigation by the trial judge was most unnecessary in the circumstances.
Counsel submitted further that if indeed the comparison made by the trial judge in chambers showed that plots 17 and 18 in exhibits P1 and P1A are not the same in dimension and the beacon numbers do not match that of the survey plan of the parties tendered as exhibits P3, P4, D1 and D2. What then, asked counsel, was the basis of the trial judge granting the relief in the Counter Claim when plots 17 and 18 inserted in exhibit P8 is not same with exhibits D1 and D2. It means that the Respondent did not establish the identity of the land he claimed since plots 17 and 18 is at variance with exhibit D1 and D2.
Learned counsel to the Respondent furnished his reaction to Appellant’s Issue No 6 in his Issue No. 4.
Respondent’s counsel submitted that the fact that non of the parties raised any issue of comparison is not a bar for the trial court in the evaluation exercise. He urged that the trial court does not need to be a surveyor or licensed surveyor before it can evaluate by way of survey plan before it. That, Exhibits P1 and P1A were the sketch plan made by the Umuananyonwu family with respect to the land in dispute. Exhibits P3 and P4 are the property plan and dispute plan filed by the Appellant. Exhibits D1 and D2 are the property plan and dispute plan respectively of the Respondent. That to contend that the trial court was in error to have observed that the survey beacons in Exhibits P1 and P1A did not match any of the plans of the parties filed in the suit and that same amounted to investigation is far from the truth.
Counsel submitted that the Appellant in an attempt to lay claim over the land in dispute stated in paragraph 7(b) of his statement on oath thus:
“7(b)I also received a sketch plan from the principal members of Umuananyonwu family which plan shows the entire plots of land owned by the family and numbered accordingly. The land in dispute is numbered plots 17 and 18 in the sketch plan”.
That, Henry Onwura Ebunam, PW1, also stated at paragraphs 5 and 9 of his statement on oath appearing at pages 119 – 122 of the Record that:
“5. The land of Umuananyonwu sub-family now in dispute was laid out in sketch plan drawn to scale. It is from the sketch plan that the land was sold to the plaintiff and other including Chief Nwabuike Anachuna (Ajie Obosi) by the Umuananyonwu family Ire village Obosi.
The sketch plan showing all the plots owned by the family and then we sold all the land using numbering on the sketch plan. The Plaintiff bought plots 17 and 18 on the sketch plan.
9. The land now in dispute is shown and verged red on the sketch plan which is already in evidence in this case. I rely on the said sketch plan. We also provided survey plan No. A/10/AN87/92 and attach same to memorandum dated 24/2/92. I also rely on the said survey plan No. A/10/AN87/92 showing the land we sold to the plaintiff and the memorandum dated 24/2/92”.
The Appellant, said counsel, tendered the sketch plan as Exhibit P1A, the memorandum as Exhibit P2 and the survey plan as Exhibit P3.
The Appellant relied on Exhibit P2 as his document of title and Exhibit P3 to identify the land. The Appellant also from the evidence of PW1 appearing at pages 119 – 122 of the Record said that it is from the Exhibit P1A that the land in dispute was sold to him in respect of which Exhibit P2 was prepared and Exhibit P3 made.
That, Exhibits P1A contains the plot numbers of the land of Umuananyonwu family. The Appellant alleged that out of these plot numbers, plots 17 and 18 were sold to him in 1978.
The question that arises then at the trial from the foregoing according to Respondent’s counsel was whether plots 17 and 18 were indicated in Exhibits P2 and P3 being paraded by the Appellants as evidence of his ownership of the said plots. This Issue counsel said, was adequately treated and answered at page 350 of the Record.
That, the PW1 under cross-examination on 9/6/08 said thus:
Q. The sale of land to Chief Anachuna and the sale to the Plaintiff is based on the sketch plan you tendered.
A. That is true. We sold 5 plots of land to the plaintiff. He first bought two and later bought additional three plots of land. Exhibit P2 is only for two plots of land. They are plots 17 and 18.
Q. Show the court on Exhibit P2 where plots 17 and 18 are inserted.
A. They are not indicated on Exhibit P2.
Counsel submitted that the Appellant who testified as PW4 said in the same manner under cross-examination at page 357 of the Record as follows:-
“………Exhibit P2 is a document with which I paid for the land in dispute. When they showed me the land they showed me plot 17 and 18. It is not shown in exhibit P2………..”
That, at paragraph 5, 6 and 7 of the Statement of Defence appearing at pages 213 – 222 of the Record, the Respondent averred that his donor purchased eight plots of land from the members of Umuananyonwu family on the 7th day of July 1977 including two plots of land now in dispute. In the same 1977, customary rites of alienation of land were performed by his donor in respect of these eight plots which transaction was reduced into writing on 10/10/77 by way of Memorandum of Customary Grant of Land signed on behalf of Umuananyonwu family by the head of the family, Michael Ibenwa and two principal members of the family, Jerome Ebunam and Onura Ebunam, who testified as PW1.
At paragraph 8 of the Statement of Defence aforesaid the Respondent outlined the numbers of these eight plots as 10, 12, 14, 16, 17, 18, 19 and 20 which were mistakenly inserted in the said memorandum as beacon numbers.
Counsel submitted that the foregoing formed the fulcrum of the trial court’s finding on the Issue, which of the two contestants was sold plots 17 and 18 by the Umuananyonwu family? Is it the Appellant or the Respondent’s predecessor in title Chief Anachuna.
That, whereas the Appellant tendered Exhibit P1, P1A, P3 and P4, the Respondent tendered Exhibits D1 and D2. All were survey plans. The trial court proceeded to evaluate the documentary evidence in furtherance of his judicial function, to decide between the parties on the basis of what has been so demonstrated and tested.
That, the contention of the Appellant that there was no issue of comparison raised by the parties on the beacon numbers on Exhibits P1 and P1A with any other plans dims into irrelevance.
Counsel submitted that the authorities of Duruminiya v. C.O.P (1961) NRNLR 70 at 73 – 74.
Owe v. Oshinabajo (1965) 1 ALL NLR 72 and Ntuogwuile v. Otuo (2001) 16 NWLR (Pt. 788) 58 at 75 cited by the Appellant do not apply in the peculiar circumstances of this suit. That, the trial court did not in any manner engage in investigation beyond what was shown or demonstrated and tested before the court by the parties.
The argument of the learned counsel for the Appellants in his Issue No. 6 contains a major premise and a minor premise.
The major premise is the contention that the remarks of the learned trial judge at page 393 of the Record that he had compared Exhibits P1 and P1A with the plans Exhibits P3, P4, D1 and D2 tendered by the parties and that the beacon numbers in Exhibits P1 and P1A do not match those of any of the plans tendered by the parties amounted to investigation by the trial judge as the exhibits were not demonstrated by evidence for the purpose of such comparison.
The minor premise, so to say, in the argument of the learned Appellant’s counsel is that the Issue of comparison of Exhibits P1 and P1A with Exhibits P3, P4, D1 and D2 were not submitted for determination as issues were not joined by the parties on that subject matter.
Each of these arguments, in my opinion result into different legal consequences.
For example, the allegation that exhibits that were not tested and/or demonstrated in open court if it truly forms the substance of a decision may be fatal to the judgment of a court in that in certain circumstances it may be held to have affected the opportunity of fair hearing of the other party.
On the other hand, a remark by the trial judge on an Issue not joined in the pleadings and not submitted for determination by the parties can only be obiter and not appealable.
In the instance case, I do not find any difficulty in agreeing with the learned counsel for the Respondent that Exhibits P1, P1A, P3, P4, D1 and D2 were properly linked, related to, tested and demonstrated before the court by the evidence of the parties, more particularly PW1, PW4 and DW1 sufficiently enough for the learned trial judge to make the comparison between Exhibits P1 and P1A and Exhibits P3, P4, D1 and D2 in the process of evaluation of evidence. This fact of demonstration of the evidence relating to the Exhibits was indeed admitted in paragraph 9.08 at page 43 of the brief of the Appellant.
It reads:
“The Appellant tendered exhibits P1 and P1A, P2 and P4 and stated that they refer to the same land otherwise called plots 17 and 18 in exhibits P1 and P1A. The documents were related in the evidence as contained in the written deposition further deposition and additional depositions of PW1 and PW4 as well as under cross-examination of PW1. Exhibits P1 and P1A were tendered to prove that plots 17 and 18 in exhibits P1 and P1A are on the ground and the same with the land shown in survey plans tendered as exhibits P3, P4, D1 and D2 in the property survey beacons and litigation plans…….”
Similarly, the Statement of Oath of DW1 Surveyor Anthony S.C. Anaebonam, the Respondent’s surveyor reads in part at page 168 of the Record as follows:-
“6. That apart from the dispute plan. I have previously prepared a property survey Plan on the same piece of land for the Defendant bearing Plan No. AC/AM/1461/2004.
7. That the dispute plan of the land in dispute was produced by me bearing survey plan No. AC/LD/39/2007 bounded by beacon Nos. PPN813, PPN 844, PPN 845 and PPN 846 and measuring approximately 927.918 square meters in area reference plan No. AC/AM/146/2004 and was filed in court in this suit.
9. That the survey contains the features, boundaries, dimensions and abuttals of the land in dispute verged red in the plan. These were identified to me by the Defendant.
10. That I saw them as they were now shown to me in the said Defendant’s plan.
11. That on request, property plan of the Plaintiff was shown to me by the counsel to the Defendant to compare with that of the Defendant and confirm if they are on the same location or piece of land.
12. That I have technically compared them and observed that both of them are not on the same piece of land (about 330 meters apart).
13. That I certify as true, and correct the Defendant survey plan No AC/LD/39/2007 filed in this suit ……………….”
It was DW1 that tendered both Exhibits D1 and D2.
At the close of cross-examination at page 365 of the Record, he added:
“The area of land covered by Exhibit D1 is 927.918 square metres. The area of land covered by Exhibit P3 is 929.063 square meters. That is approximately 2 plots of land”.
Beyond the foregoing clear relationship and demonstration of the evidence of the parties in this case and Exhibits P1, P1A, P3, P4, D1 and D2, I also agree with the learned counsel for the Respondent that the cases of Bornu Holdings Co. Ltd. v. BOGO Co. (1971) ALL NLR 324 at 380 – 331.
Duruminiya v. C.O.P. (1961) N.R.N.L.R. 70 at 73 – 74.
Governor Kwara State v. Eyitayo (1997) 2 NWLR (Pt.485) 118 at 129.
Terab v. Lawan (1992) 3 NWLR (Pt. 231) 569
Owe v. Oshinabajo (1965) 1 ALL NLR 72 at 75 and Nteogwuile v. Otuo (2001) 16 NWLR (Pt. 738) 58 at 75 are not applicable to the facts and circumstances of this case.
First, unlike the case of Owe v. Oshinbajo (supra) the discrepancy highlighted in the remark of the learned trial judge at page 393 of the Record was already alluded to in the evidence of DW1.
Second, unlike the case of Duruminiya v. C.O.P (supra) where the accounting book of entry was not opened and received in court (in the public glare) or the case of Terab v. Lawan (supra) where the ballot boxes/Election materials were equally not viewed in the open, circumstances which affected the case of the prosecution and the petitioner in each of the cases, in the instance case, Exhibits P1, P1A, P3, P4, D1 and D2 is one page of document each, tendered and viewed in open court and related and linked by the evidence of the parties.
The allegations of the learned counsel for the Appellant that the learned trial judge not being a surveyor examined the said Exhibits in his chambers to make the remark contained on page 393 of the Record is totally unfounded.
Assuming the learned counsel for the Appellant was right to say that none of the parties submitted the issue of comparison of their survey and property plans with Exhibits P1 and P1A for determination, in that case, the remark of the learned trial judge on an Issue not submitted for determination by the parties is properly so called an obiter dictum.
It is necessarily a passing remark in the circumstances of this case. This is because whatever the incongruities between Exhibits P1 and P1A and Exhibits P3, P4, D1 and D2 the parties in this case are agreed as to the identity of the land in dispute.
The remark of the learned trial judge at page 393 of the Record now subject of complain by the Appellant does not affect the rights of any of the parties in the case. It is unnecessary for the determination of the contest between the parties. It does not occasion any miscarriage of justice. It is simply obiter.
In the instant case, where the parties are agreed as to the identity of the land in dispute the reference to the survey plans either by the parties or by the learned trial judge is unnecessary for the determination of the Issue(s) between the parties.
It is settled that where a piece of land in dispute is not unascertainable, as for instance, where all the parties, are agreed as to its areas and location or boundaries on the ground, it is not even necessary for them to have filed a plan.
See Kwadzo v. Adjei (1994) 10 W.A.C.A 274.
EPI v. Aigbedion (1972) 10 S.C. 53.
Akpagbue v. Ogu (1976) 6 S.C. 63.
Ezeudu v. Obiagwu (1986) 2 N.W.L.R. (Pt. 2) 208.
Maberi v. Chief Alade & Ors. (1987) 4 S.C. 184 at 192, (1987) 1 N.S.C.C. Vol. 18 (Pt.1) 514.
Eze Okeke & Ors. v. Uga & Ors. (1962) 1 A.N.L.R. 482 at 484.
Awoyoolu & Anor. v. Aro & Anor. (2006) 2 S.C.N.J. 44 at 57.
Issue No. 6 is resolved against the Appellant.
On Issue No. 7, learned counsel for the Appellant submitted that none of the witnesses of the Respondent executed nor witnessed the execution of exhibit P8. That it was therefore not surprising that to tender exhibit P8, the Respondent tendered same through PW1 under cross-examination of PW1. PW1 was the only person who executed exhibit P8 that gave evidence.
Learned counsel for the Appellant then referred to the evidence of PW1 at pages 119 and 120 more especially his deposition in paragraphs 5 and 11. He also referred to the written deposition of DW4, Julius Anene more especially paragraphs 8, 9 and 10 contained at page 152 of the Record.
Counsel submitted that at page 370 of the Record, DW4 admitted thus:
“I have seen exhibit P8. I did not sign it in any capacity or at all.
Q. You said the entry of the Plot numbers as survey beacons was a mistake of the lawyer.
Ans. That is true.
Q. Those who signed exhibit P8 may have made mistake.
Ans. That is not possible. I have looked at exhibit P8.
I have seen the names, Ebunam, 1977, N96,000.00 and the figure 10, 12, 14, 16, 17, 18, 19, 20, on exhibit P8.
Q. The character of the machine that made those impression differ from the character of the other machine that made other impressions.
Ans. I do not know about that.
Q. There are spaces left out at page 2 of the agreement like where the survey beacons should be.
Ans. That is true but that is normal.
Q. Numbers 10, 12, 14, 16, 17, 18, 19 and 20 were typed with a machine different from the machine used to type the other portions.
Ans. It appears so. I was not present when exhibit P8 was made. I did not sign it.
Counsel submitted that DW4 who claimed to know about exhibit P8 and the transaction of 1977 under cross-examination admitted, that he was not present when exhibit P8 was made and he did not sign exhibit P8. That from the admission of DW4 that he was not present when exhibit P8 was made and that he did not sign exhibit P8 all the evidence of DW4 which was relied upon by the trial judge to hold that the Respondent proved that there was mistake in exhibit P8 by the entry of plots 10, 12, 14, 16, 17, 18, 19, and 20 in exhibit P8 instead of beacon numbers was based on hearsay evidence.
He argued that the rejection of the evidence of PW1 (Henry Ebunam) who it was acknowledged by even DW4 signed exhibit P8 to the effect that the space for the survey plan and survey beacons were vacant as at the time exhibit P8 was signed in 1977 and the entry of plots 10, 12, 14, 16, 17, 18, 19 and 20 was not by them and it was made after execution of exhibit P8 ought in the circumstances to have been preferred and believed.
He referred to the provision of Section 91(1)(a)(i) and (b) of the Evidence Act LFN 2004. A.G. Oyo State v. Fairlakes Hotel No. 2 (1989) 5 NWLR (Pt. 121) 255.
Counsel submitted that it is clear from the testimony of DW4 that he, not being the maker of exhibit P8. Not being present when exhibit P8 was made and signed cannot give evidence about the mistake and entries in exhibit P8. Such evidence of the mistake in the entries in exhibit P8 by DW4 is hearsay evidence. The evidence of DW4 in so far as it seeks to establish the truth as to mistake and the entry of plots in exhibit P8 and in direct challenge of the evidence of PW1 constitutes hearsay evidence.
On this, counsel referred to the case of Flash fixed ODDS Ltd v. Akatugba (2001) 9 NWLR (Pt. 717) 46 at 63.
Chittex Industries Ltd. v. Oceanic International, Bank Ltd. (2005) 14 NWLR (Pt. 943) 392 at 411.
Olalomi Industries Limited v. NIDB (2002) 17 NWLR (Pt. 795) 58.
Myers v. DPP (1965) AC 1001.
Alao v. Akano (2005) 11 NWLR (Pt. 935) 160.
Omorhirhi & Ors. v. Enaterwere (1988) 1 NWLR (Pt. 73) 746.
Learned counsel for the Appellant asked rhetorically, what then was the basis of the trial judge’s finding that the insertions in exhibit P8 of plots 10, 12, 14, 16, 17, 19, and 20 were made before exhibit P8 was executed as opposed to the evidence of PW1 that the space was vacant and it was meant for the property survey plan and the survey beacons. What then was the basis of the finding of the trial judge that reference to plot numbers 10, 12, 14, 16, 17, 18, 19, and 20 could only be to the plot numbers and that the evidence of PW1 that the space was vacant and left for typing in the property survey plan as at the time of execution of exhibit P8 was not true. No other evidence was relied upon other than the hearsay evidence of DW4.
The evidence of DW4, said counsel failed to meet the quality of evidence that will induce believe and the finding made by the learned trial judge.
He referred to the case of Ezemba v. Ibeneme (2004) 14 NWLR (Pt. 894) 617.
The learned counsel for the Respondent reacted to Appellant’s Issue No. 7 in his Issue No. 5. First, counsel referred to the evidence of DW4 at page 152 of the Record, particularly paragraphs 8, 9, 10 of his evidence which in line with paragraph 8 of the Statement of Defence pleaded mistake of inserting plot numbers in the space meant for beacon numbers on Exhibit P8.
That, also at pages 349 – 350 of the Record, the PW1 was being cross-examined by the Defence counsel and that it went thus:
“I knew Chief Nwabuike Anachuna, AJIE Obosi. Our family sold 8 plots of land to him at Mkputumpu Ugwu Oluloji. This was in 1992.
Q. Please look at this document.
Ans. I have seen the document. My signature is on the Document.
Q. You sold the land to Chief Nwabuike Anachuna, AJIE in 1977.
Ans. That is not true. We sold the land to him in 1992. Nobody sold any land in 1977.
Nworie: I seek to tender the document in evidence.
Nnadi: I object.
Court: The document is admitted in evidence and marked Exhibit P8.
Q: The sale of land to Chief Anachuna and the sale to the Plaintiff is based on the sketch plan you tendered.
Ans: That is true.
Q. The plots of land sold to Chief Nwabuike Anachuna are plots 10, 12, 14, 16, 17, 18, 19 and 20.
Ans: That is not true. They are plots 6, 8, 10, 12, 14, 16, 19 and 20. I have seen Exhibit P8. The numbers were not inserted by us. We only showed them the land. We sold 5 plots of land to the Plaintiff. He first bought 2 and later bought 3 plots of land.
Counsel submitted that at pages 393 – 394 of the Record, the trial court made the following findings:
“None of the parties plans referred to any plot number or to plots 17 and 18. The Plaintiff’s memorandum of customary grant did not refer to plots 17 and 18. The agreement described the land as being found by Beacons Nos. 10, 12, 14, 16, 17, 18, 19 and 20. The Defendant had pleaded mistake. His case is that those were plot numbers and not beacon numbers and on the totality of the evidence that is most probable.
Otherwise how can one explain the fact that all the figures save two are admitted by the Plaintiff’s witness to be the same numbers ascribed to the plots of land bought by Chief Anachuna. It must be stated that the document, Exhibit P8 is not the most elegantly prepared agreement I have seen. Naturally, the Plaintiff has launched a very serious attack at the document. It was observed that the numbers were typed in by a typewriter different from the one used for the rest of the documents. I have looked at exhibit P8 closely and I do not agree with that criticism. Exhibit P8 is a carbon copy, that is was typed with carbon paper on top of it. The figures were however typed directly and not with carbon paper.
The names of PW1 and Jerome Ebunam were also so typed. Yet the PW1 had no issue with that. Similarly, he had no Issue with the sums of money also inserted in the agreement. I therefore do not have any doubt in my mind that the insertions were all made before the agreement was signed”.
Counsel submitted further that the trial court also found at page 394 of the Record concerning the plots as numbered that.
“Now, there was no survey plan attached to Exhibit P8. Consequently, the Issue of survey beacon does not arise. You cannot talk of survey beacons where there is no survey plan. The only plan available at the time of the sale of land to Chief Anachuna was the sketch plan Exhibit P1 and P1A. Consequently, reference to numbers 10, 12, 14, 16, 17, 18, 19 and 20, therein could only be to the plot numbers. I have already observed that PW1 is not a truthful witness”.
Counsel submitted that the Appellant who has raised the Issue of propriety of the decision or finding of the trial court that insertions of plots 10, 12, 14, 16, 17, 18, 19 and 20 were made after exhibit P8 was signed and that the plea of mistake could not avail the Respondent failed to appreciate the following.
i. Exhibit P8 was made by being typed with a carbon Paper on top of it.
ii. The figures were typed directly inside the agreement and not with carbon paper.
iii. The names of PW1 and Jerome Ebunam were also so typed.
iv. The PW1 admitted he signed the document and did not complain about the insertion of his name which was also typed in directly without carbon.
v. PW1 did not also complain about the amount of money expressed in the agreement as paid to them, also typed in directly.
vi. There was not survey plan attached to exhibit P8.
vii. The only plan available as at the time of sale to Chief Anachuna was the sketch plan Exhibits P1 and P1A which had no beacon numbers.
viii. The Appellant accepted the numbers were plot numbers appearing in the sketch plan but only disputed two of the numbers.
Counsel submitted that it becomes apparent that the trial court was perfectly in tune with the stream of evidence given in the case when it came to the conclusion that the reference to beacon numbers in exhibit P8 was meant to be plot numbers and that same was a mistake. Also, that PW1 who admitted signing exhibit P8 did so after the insertions appearing in exhibit P8 were already made including the name of PW1, that is Henry Ebunam and the plot numbers.
He referred to Section 128(2)(sic) 127(2) of the Evidence Act (Now Section 160(3), Evidence Act 2011) on interlineations appearing on a Deed.
Counsel urges us to hold that the findings of the trial court on this issue are unassailable.
Again, there are two dimensions to Appellant’s Issue No. 7, the first is the Appellant’s contention that the Respondent did not prove the mistake of inserting plot numbers in the space meant for beacon numbers in exhibit P8 the second relatedly, but perhaps more import ant is the allegation by the Appellant himself that the plot numbers in exhibit P8 were inserted after the execution of the said Deed (exhibit P8).
From the perspective of the Respondent, the fact in relation to the first leg of issue No. 7 arose from the averment in paragraph 8 of the statement of claim.
In the case of the Appellant, the facts relating to both legs of the Issue arose from the averments in paragraphs 8 and 9 of the Reply to the Statement of Defence and counter claim. Let us start by examining these Pleadings.
Paragraph 8 of the Respondent’s Statement of Defence contained at page 214 of the Record states:
8. The Defendant avers that these eight (8) plots numbered as plot Nos. 10, 12, 14, 16, 17, 18, 19 and 20 were mistakenly written in the said memorandum as beacon numbers.
PARTICULARS OF MISTAKE
1. These figures are exactly eight (8) in number representing the eight (8) plots of land purchased by the Defendants Donor from Umuananyonwu family.
ii. Beacon numbers are usually pre-fixed by alphabets or letters such as BN, CP, PP, SC, AN, etc.
iii. The plot numbers mistakenly written as beacon numbers have no such pre-fixes.
iv. Lawyers are humans and can make mistakes.
By paragraph 8 and 9 of the Appellant’s Reply to the Statement of Defence, the Appellant made only a general denial of the special averments in paragraph 8 of the Respondent’s claim and was content instead of offering a specific traverse, to now launch his own allegation of fraud, that the plot numbers were inserted after the execution of the agreement and/or that plots Nos. 17 and 18 were inserted after the execution of the agreement (exhibit P8) as plots 6 and 8 and not 17 and 18 were the ones that made up the eight (8) plots sold to the Respondent’s predecessor in title.
Paragraphs 8 and 9 at page 229 of the Record reads thus:
8. Paragraph 8 of the Statement of defence is not true. There was no mistake at all.
The Plaintiff aver that the defendant and his cohort, in a bid to fraudulently snatch the Plaintiff s land ostensibly and knowingly inserted the plot numbers to assist the Defendant in snatching the land in dispute from the plaintiffs. The plots sold to Chief Nwabuike Anachuna by Umuananyonwu family are plots numbers 6, 8, 10, 12, 14, 16, 19 and 20 which plots he (sic) side by side to the plots of land sold to the plaintiff which are plots No. 5, 7 , 9, 17 and 18.
9. Further to above, the insertion of plot numbers on the memorandum, with a different ink from the ink used in typing the memorandum is a deliberate act never a mistake.
Lawyers do not make such mistakes.
In the foregoing paragraphs, the Appellant rendered a general traverse, denial to the specific averments of the Respondent that the insertion of plots numbers in the place of beacon numbers was a mistake. Both parties ended up in a comparison of the pleadings to be speaking at almost cross-purposes.
The law is that a general denial is not a sufficient traverse of specific averments. In the instant case, there was no valid traverse of the averment in paragraph 8 of the Respondent’s statement of claim by paragraphs 8 and 9 of Appellant’s Reply to the Statement of Defence.
A positive and distinctive allegation in the statement of claim must be specifically denied. This is called a specific traverse. In a special traverse, the defence shall explain or qualify the denial of facts in a statement of claim. The averments in paragraphs 8 and 9 of the Appellant’s Reply to the Statement of Defence and counter-claim amounted to admission of the facts in paragraph 8 of the Statement of Defence.
See Lewis and Peat (N.R.I.) LTD. v. Akhimien (1976) 7 SC 157
Wallersteiner v. Moir (1974) 1 W.L.R. 991 at 1002
A.O. Adiba & 1 Or. v. Akaazue Muemue (1999) 6 S.C.N.J. 245 at 253.
The above, thus constitutes the first justification for the trial court’s acceptance of the plea of mistake in paragraph 8 of the Respondent’s Statement of claim that the plot numbers were mistakenly inserted in the space meant for beacon numbers in exhibit P8.
Second, by Section 127(2) of the Evidence Act (now Section 160(3) Evidence Act 2011) alterations and interlineations appearing on the face of a deed are in the absence of any evidence relating to them are presumed to have been made before the deed was completed.
In the instant case, there was nothing in the evidence of the Appellant and/or PW1 that could suggest that the presumption under Section 160(3) of the Evidence Act in favour of exhibit P8 was rebutted.
The second leg of Appellant’s Issue No. 7 suffers as much hurdles as the first leg.
First, the presumption under Section 160(3) of the Evidence Act 2011 works in favour of exhibit P8 in relation to the two aspects of the argument of the learned counsel for the Appellant on Issue No. 7.
Second exhibit P8 as a document speaks for itself and could not as a general rule be contradicted by the oral evidence of PW1.
This is consequent on the provision of Section 128(1) of the Evidence Act that when a judgment of a court or any other judicial or official proceeding, contract or any grant or other disposition of property had been reduced to the form of a document or series of documents, no evidence may be given of such judgment or proceeding or of the terms of such contract, grant or disposition except the document itself…. nor may the contents of any such document be contradicted, altered, added to or varied by oral evidence.”
Fraud as was pleaded by the Appellant in the instant case is one of the recognized exceptions to the general rule under Section 128(1) by virtue of Section 128(1) (a) of the same Evidence Act.
In the instant case, the implication for the Appellant on his contention that the plot numbers in exhibit P8 were inserted after the execution of the document is that the Appellant carried two related burdens. First, the burden of proving fraud under Section 128(1)(a) as an exception to the general rule under Section 128(1) of the Evidence Act and second, the burden of proving the commission of a crime in a proceeding beyond reasonable doubt under Section 135(1) of the Evidence Act.
In the circumstance of this case, the viva voce evidence of PW1 did not prove and could not have been sufficient to discharge the burden on the allegation of fraud contained in paragraphs 8 and 9 of the Appellant’s Reply to the Statement of Defence.
The findings of the learned trial judge that the insertions of plots 10, 12, 14, 16, 17, 19 and 20 in exhibit P8 were made before exhibits P8 was signed and the plea of mistake in the insertions of plots 10, 12, 14, 16, 17, 19 and 20 instead of property survey plan numbers in exhibit P8 was established by the Respondent are unassailable.
Issue No. 7 is resolved against the Appellants.
Appellant’s Issues nos.8 and 10 deal with whether or not title to the land in dispute ever passed to the Appellant.
First, on Issue No. 8, learned counsel for the Appellant submitted that before the Issue of priority of sale is considered where the sale is by a common grantor as in the present case. It must be established that it was same plots 17 and 18 that was sold to both the Appellant and the Respondent’s predecessor in title. That the case of the Appellant and the evidence of PW1 is that what was sold to the Respondent’s predecessor-in-title were 8 (eight) plots viz; 6, 8, 10, 12, 14, 16, 19, and 20 which are on the same side and adjacent to each other in exhibits P1 and P1A whilst plots 17 and 18 were sold to the Appellant later plots 5, 7 and 9 were also sold to the Appellant.
That, all the plots 17 and 18 and later 5, 7, and 9 sold to the Appellant are adjacent to each other in exhibit P1 and P1A.
Counsel submitted that the finding of the learned trial judge was not justified because it is the members of Umuananyonwu family that know the portion of the land sold to the Appellant and Chief Anachuna, the Respondent’s predecessor-in-title. That the family did not deny that it sold 8 plots to Chief Anachuna. The family maintained that it sold 8 plots to Chief Anachuna but the 8(eight) plots sold did not include plots 17 and 18 but included plots 6 and 8 which was not mentioned in exhibit P8.
He argued that the survey plan attached to exhibit P2 was made during the life time of Chief Anachuna, but that he (Chief Anachuna) did not complain.
He submitted on Issue No. 8 that the finding, that the Umuananyonwu family had divested themselves of the land in exhibit P2 (that is plots 17 and 18) is manifestly unsupportable.
On Issue No. 10, learned counsel for the Appellant adopted his argument in respect of Issue Nos. 8 and 9.
He added that the Respondent did not make any survey of the land purportedly sold to him by Chief Anachuna by virtue of a power of Attorney (exhibit D3) in 1997.
He urged us to hold that the Appellant and DW1 gave direct evidence as witnesses to the transaction with Umuananyonwu family.
Learned counsel for the Respondent answered Appellant’s Issues Nos. 8 and 10 in his Issue No. 6, he reiterated that under cross-examination, the PW1 was shown exhibit P8 appearing at page 349 of the Record and asked whether he had seen the document. That, the PW1 answered that he had seen the document before and his signature is on the said document. Exhibit P8 is memorandum of customary grant in which the PW1’s Umuananyonwu family recorded the grant to Chief Anachuna of 8 plots of land shown in exhibit P8 as 10, 12, 14, 16, 17, 18, 19 and 20. The memorandum Exhibit P8 stated on its face that it was made in 1977.
Counsel submitted that once it is shown that Plots 17 and 18 were among the plots of land granted to Chief Anachuna in 1977, then in that case the Umuananyonwu family that granted the land in 1977 lost the power to grant the same power to grant the same land again to any other Person.
In deciding Appellant’s Issues Nos. 8 and 10, it must first be repeated that the parties are not only agreed as to the identity of the land in dispute but also that the land in dispute are known by them as plots 17 and 18 of the Umuananyonwu layout by exhibits P1 and P1A.
The Appellant who asserts that plots 6 and 8 were the plots sold to Chief Anachuna failed to prove the assertion.
It is trite law that he who asserts must prove.
See Section 131 of the Evidence Act 2011 Muraino Elemo and Other v. Fasasi Omolade and others 1968 N.M.L.R. 359 at 361
In the instant case, the evidence of PW1 and exhibit P8 confirm the sale of the land in dispute to the Respondent’s predecessor-in-title in 1977.
By that singular fact, the Umuananyonwu family had divested itself of title to the land in dispute in 1977 and had nothing to sell, grant or convey to the Appellant in 1978. The purported sale of the land in dispute to the Appellant in 1978 was therefore a nudum pactum, an exercise in futility and null and void ab initio. This is by virtue of the well established legal maxim, nemo dat quod non habet which, in effect means no one may give that which does not belong to him.
See Sanyaolu v. Coker (1983) 3 S.C. 124 at 163 – 164.
Senator Adesanya v. President Federal Republic of Nigeria (1981) 5 S.C. 1.
Ugo v. Obiekwe (1989) 1 N.W.L.R. (Pt. 99) 566.
Mohammed Oladapo Ojegbende v. M.O. Esan (Loje-Oke) and 1 Or (2001) 12 S.C.N.J. 401 at 420.
From the foregoing, the learned trial judge was right in terms of Appellant’s Issue No. 8 to hold that no land was sold to the Appellant by the Umuananyonwu family and was equally right to hold in terms of Issue No. 10 that the Appellant has no title at all over the land in dispute.
Issues Nos. 8 and 10 are accordingly resolved against the Appellant.
On Issue No. 9, learned counsel for the Appellant submitted that DW2 (Christian Eze) who was called as boundary neighbor did not claim to be the owner of plots 6 and 8 and no evidence by way of survey plan or documentary evidence was led so as to show that plots 6 and 8 was sold to DW2. His evidence relates to the land he is disputing with the plaintiff which is plot 5, 7, and 9. He referred to paragraphs 3 of the witness deposition of DW2 Christian Eze at page 165 of the Record.
Counsel submitted further that DW2 was not even shown any litigation plan or property plan nor exhibit P1 and P1A to identify plots 6 and 8 or the boundary of the land he claimed to be his plot yet, said counsel, his evidence was believed. That, Christian Eze further stated that he purchased 6 (six) plots of land from Ajie family. He did not mention the plot numbers he purchased. He did not tender any survey plans or Agreement or state that he (DW2) purchased same under native law and custom of Obosi.
Counsel referred to the cases of Agbonifo v. Aiwereoba (1988) 1 NWLR (Pt.70) 325 at 339. MISR (Nig.) LTD. v. Ibrahim (1975) 5 S-C. 55.
Egonu v. Egonu (1978) 11 – 12 SC 111.
Karibo v. Grend (1992) 3 NWLR (Pt. 230) 426 and submitted that where a trial court failed to make a finding on a material and important Issue of fact or approaches the evidence called by the parties wrongly (as in this case) the appellate court would have no alternative but to allow the appeal
Learned counsel for the Respondent furnished a reply to Appellant’s Issue No. 9 in his Issue No. 7.
He submitted that DW2 (Christian Eze) was called as a boundary neighbour. That at paragraphs 4, 7, 8 of his witness statement on oath appearing at pages 165 to 166 of the Record, he deposited thus:
“I know the land in dispute. The land is at Mkputumkpu Ugwu Ololoji Obosi along Ezeiweka Road. It is two (2) plots of land.
The two plots of land now in dispute belong to the Defendant.
5. ………………………………………………
6. ………………………………………………
7. Outside these two plots of land now in dispute. I am the owner of all the other adjourning (sic) portions of land surrounding the two plots of land to the north, east and west. At the Southern part of the land in dispute is Ezeiweka Road.
I bought these portions of land respectively from Umuenwezor, Umuabia, Umunwamuo and Umuokpagu families all of Ire village Obosi. I also bought six(6) pots of land from Ajie of Obosi’s family.
8. I am aware that Ajie bought eight (8) plots of land from Umuananyonwu family being the Umuananyonwu family land at Mkputamkpu land Obosi. Out of these eight (8) plots, the Defendant bought two plots while the remaining (6) plots were sold to me”.
Counsel submitted that throughout the length and breath of DW2’s cross-examination at pages 265 – 367 of the Record, the DW2’s above evidence of being boundary neighbour to the Respondent was not challenged not to talk of being controverted.
The DW2’s cross-examination dwelt on what transpired between his vendor, Chief Anachuna the Ajie of Obosi and the Umuananyonwu family at a time the DW2 was yet to acquire his holding at Mkputumkpu land and DW2’s dispute with the Appellant over another 3 plots of land which are also near the land in dispute.
Counsel submitted that it is settled law that where a piece of admissible evidence is neither challenged nor controverted, the trial court is duty bound to accept it and to act on it. The suggestion of counsel at paragraph 12.1 of the Appellant’s brief that DW2 is disputing over plots 5, 7 and 9 with the Appellant is not borne out by the Record.
Learned counsel for the Respondent submitted further that DW2, Christian Eze, gave evidence that out of the 8 plots of Umuananyonwu family land admittedly sold to Chief Anachuna Ajie Obosi, he Christain Eze bought six (6) while the Respondent bought the other two (2). That, the Appellant did not think it necessary to ask questions about the plot numbers sold to DW2 by the Ajie of Obosi’s family. That, the Appellant obviously was satisfied with the deposition that DW2 bought 6 plots of Umuananyonwu family land from Chief Anachuna the latter having previously bought 8 plots from the Umuananyonwu family. It was enough for the Appellant that the DW2 gave evidence that six (6) plots of land were sold to him by Ajie family. The DW2’s title to the 6 plots sold to him by the Ajie family was clearly not an issue arising for determination in the proceeding.
That, it is for this reason perhaps that the Appellant did not even bother to ask DW2 whether his purchase of the 6 plots from Ajie family was in accordance with native law and custom.
Counsel submitted that to compound matters, the Appellant who is contending that plots 6 and 8 instead of plots 17 and 18 were among the 8 plots sold to Chief Anachuna by the Umuananyonwu family did not make any effort to find out from DW2 who bought all of Ajie’s family Umuananyonwu land save two plots, whether Ajie’s family sold plots 6 and 8 to him to enable the Appellant make deduction.
He urged that the finding of the trial court on the Issue is beyond reproach.
It seems to me that by Issue No. 9 Appellant’s counsel is now making Issue on appeal of matters that he failed to raise or cover in the course of cross-examination at the court below, in order words, seeks to raise new issues through the back door. This is not acceptable.
The purpose of cross-examination is to test the veracity of a witness, shake his credibility and elicit evidence in pursuit of the case of the opponent. Cross-examination is a powerful and valuable weapon for the purpose of testing the veracity of a witness and the accuracy and completeness of his story.
See Mechanical & General Inventions Co. Ltd. & Anor. v. Ausstin & Austin Motor Co. LTD. (1935) A.C. 349 at 359.
The avalance of favourable evidence which the Respondent now complained was not given by DW2 would have been elicited from the DW2 at the appropriate time, that is in the course of cross-examination.
As the matter stands, the DW2 gave evidence as a boundary neighbour to the Respondent which unchallenged evidence was accepted by the court. The trial court had no option but to act on the evidence of DW2. It was pertinent for the court to consider the evidence of DW2 as unshaken.
It is trite law, that a court is bound to accept the unchallenged evidence of a witness.
See Aigbohahi v. Aifuwa (2006) 2 S.C.N.J. 61 at 70.
Ojukwu v. Obasanjo & Ors. (2004) 1 EPR 626 at 652.
The learned trial judge was right in relying on the evidence of DW2 (Christian Eze) to hold that the land in dispute belonged to the Respondent as the evidence of DW2 was unshaken under cross examination.
Issue No. 9 is resolved against the Appellant.
On Issue No. 11, learned counsel for the Appellant submitted that the Appellant maintained in his evidence that he did not destroy the building and other property as claimed by the Respondent.
That the standard of proof of such destruction and damage to property is proof beyond reasonable doubt being in the realm of malicious damage. The Appellant was not found liable before the trial court relied on exhibits D4 to D4E to find the Appellant liable.
Counsel submitted that Exhibits D4 to D4E do not establish liability. It is when liability is established that the question of damages may arise. That DW4 under cross-examination at page 373 of the Record admitted that the Appellant was on the land in dispute and was working before the Respondent came on the land in 2004. That the evidence of the Appellant in his further statement on oath at pages 235 to 240 of the Record was a denial of the counter claim of the Respondent and a challenge of the sum of N948,150.00 as claimed by the Respondent.
The Appellant’s evidence was to the effect that whilst he was on the land, the Respondent came into the land in 2004 assisted by thugs damaged and removed the survey beacons embedded on the land, started construction of a building and wall fence on the land of the Appellant using the said stones and blocks moulded by the Appellant.
Counsel submitted that the Appellant at paragraphs 31 at page 239 of the Record denied that the Respondent suffered any loss and stated “All receipts relied upon by the counter claimant are prepared for this suit just to found a claim” yet, the trial judge said that the claim for damages were not challenged by the Appellant.
That, exhibits D4 to D4E bearing the dates of 1/2/2003, 10/1/2003, 3/6/2003, 8/2/2003 were truly made for this suit as the Respondent only entered the land in 2004 and surveyed the land in 2004.
The receipts of 1/2/2003, 10/1/2003, 3/6/2003 and 8/2/2003 cannot be true and were truly made for the above suit as stated by the Appellant.
The claim for damages based on the said exhibits D4 to D4E made in 2003 cannot in the circumstances be true.
Learned counsel for the Respondent replied Appellant’s Issue No 11 in his Issue No. 9. He submitted that the trial court after having found that the Respondent had proved his right over the plots in dispute and entitled to the declaratory and injunctive reliefs sought, weighed the evidence before the court to see if in addition to the above reliefs, the Respondent was also entitled to his counter claim for damages and trespass.
The Respondent, said counsel led evidence in paragraphs 26 – 27 of his witness statement on oath appearing at pages 148 – 149 of the Record on the damages he suffered. In support of the damages suffered, the Respondent also properly tendered exhibits D4 – D4E which were receipts issued to him for purchases he made in respect of the building materials used in the development of the land in dispute. That, evidence is not watered down by the Appellant’s argument that from the evidence of DW4, the Appellant was working on the land before the Respondent came on the land in 2004. The evidence of Appellant working on the land can only be situated as an act of concurrent possession bearing in mind that the Respondent’s title document spoke of the transaction between the Respondent and his vendor was a 1997 event.
Counsel submitted that exhibits D4 – D4E corroborated the evidence of DW5 that he made such purchases which were utilized in the construction of the land in dispute.
Counsel submitted that the Appellant did not lift a finger in challenge of the clear and specific figures on the specific items and value of Respondent’s damages. That the trial judge was in the right to have placed reliance on the case of Gaji v. Paye (2003) 8 NWLR (Pt. 823) 583 in making the finding that the Appellant has admitted the claim for damages and no further proof is required.
On issue No. 11, I agree with the learned counsel for the Respondent that paragraph 15 of the statement of oath of DW5 which witnesses the destruction of the Respondent’s properties on the land in dispute and which corroborated paragraphs 26 – 27 of the Respondent’s DW4 statement on oath on the plea of special damages was not in any way challenged or controverted by the Appellant. The evidence of DW4 and DW5 on the damages suffered by the Respondent from the Appellant are deemed admitted. Clearly, what is admitted or deemed admitted needs no further proof.
See Section 123 of the Evidence Act 2011.
See also Chief Okparaeke of Ndiakere and Other v. Obidike Egbuonu and Others (1941) 7 W.A.C.A. 53.
Chief Baren Nwizik and Other v. Chief Waribo Eneyok and Others (1953) 14 W.A.C.A. 354.
Aigbibahi and Other v. Aifuwa and Others (2006) 2 S.C.N.J. 61.
The learned trial judge was right when he held at pages 395 – 396 of the Record that:
“The defendant in addition to the declaratory and injunctive reliefs also claimed for damages for trespass. He led evidence in paragraph 27 of his written statement of 26th July 2007 on the damages he suffered. He also tendered Exhibit D4 to Exhibit D4E as the reliefs for the building materials which he bought and used on the land. He was not cross-examined on this aspect at all. Not even the figures which he provided was challenged. In the circumstances the plaintiff is deemed to have admitted the claim for damages.
See Gaji v. Paye (2003) 8 NWLR (Pt. 823) 583”.
Issue No. 11 is resolved against the Appellant.
The contention of the Appellant in Issue No. 12 is that the learned trial judge was wrong in dismissing the claim of the Appellant and awarding the counter claim of the Respondent. In doing so, the learned counsel for the Appellant repeated virtually all the arguments he had previously canvassed on his Issue 1, 3, 4, 5, 6, 7, 8, 9, 10 and 11, He then reviewed the evidence of the Respondent’s witnesses and emphasized since none of the Respondent’s witnesses was there when Exhibit P8 was made, there evidence could not sustain the Respondent’s counter claim. That, in particular because the Appellant stated that Exhibits P1 and P1A formed the basis of the sale of land to both the Appellant and the Respondent, that Exhibits P1 and P1A supposedly made in 1992 could not have supported the sale of land to the Respondent in 1977.
Learned counsel for the Appellant pointed out contradictions between the evidence of DW4 and DW5 as to the time they ever saw Exhibits P1 and P1A and said that the sketch plan Exhibits P1 and P1A were seen by the Respondent and DW4 in 2004.
He submitted that the disbelief of the evidence of PW1 meant that the customary law transaction of the Respondent’s predecessor in title in respect of sale of the plots was not proved. He referred to the cases of Etajatu v. Ologbo (supra) Cole v. Folami (supra) and Odusoga v. Rickets (supra).
Counsel submitted that there is no evidence of witnesses and family members of Umuananyonwu family to the transaction of 1977 save the evidence of PW1 which was disbelieved.
He referred to the cases of Kezie v. Iwuoha (1998) 8 NWLR (Pt. 563) 554 at 563.
Atolagbe v. Shorun (1985) 1 NWLR (Pt.2) 360
Ugorji v. Onwuka (1994) 4 NWLR (Pt.337) 226 at 336
Obviously, the learned counsel for the Appellant by his Issue No. 12 does not seem to appreciate the events in this suit in the court below.
The Respondent on record is the donee of a Power of Attorney on the land in dispute by his predecessor in title, Chief Anachuna. The suit which culminated into this appeal, strictly speaking was a contest in between the title of the Appellant and that of the Respondents predecessor-in-title.
The Respondent and his witnesses do not need to know the date that Exhibits P1 and P1A were made for the Respondent to derive title from his predecessor in title. The DW1 and DW2 do not need to be present at the sale transaction between the Umuananyonwu family and Chief Nwabuike Anachuna for the purpose of knowing the portion of land belonging to Chief Anachuna. There is no evidence that the Umuananyonwu family ever challenged Chief Nwabuike Anachuna that he sold plots of land of Umuananyonwu family which Umuananyonwu family did not sell to him. Exhibits P1 and P1A (the Sketch plan) do not have any dates inscribed on them. The Appellant’s argument that a document made in 1992 cannot be inserted into a document in 1977 cannot apply as Exhibits P1 and P1A do not have any dates and the court never accepted that they were made in 1992.
The trend of evidence which the learned counsel for the Appellant does not appreciate is that it is the same evidence of PW1 which failed to prove any title of the Appellant to the land in dispute and could not be believed in relation to the case of the Appellant that ushered in the proof of the Respondent’s counter-claim in the course of cross-examination.
In other words, PW1 confirmed his signature on exhibit P8 and confirmed the validity of exhibit P8 in relation to the sale of 8 (eight) plots of land to Chief Anachuna, the Respondent’s predecessor in title in 1977.
The attempt by PW1 after proving the sale of land to Chief Anachuna to resile from the sale of plots 17 and 18 and his evidence that it was plots 6 and 8 that were sold to the Respondent’s predecessor-in-title became glaringly unbelievable in the face of the insertions in Exhibit P8.
As I have held in the treatment of earlier issues in this appeal, the Appellant was not able to prove fraud as against the content of exhibit P8.
The evidence of DW2 as a boundary neighbour to the Respondent merely corroborated the evidence of PW1 that title to the land in dispute passed to the Respondent’s predecessor-in-title as at 1977.
The learned trial judge was therefore right in dismissing the claim of the Appellant and awarding the counter claim of the Respondent.
Issue No. 12 is resolved against the Appellant.
In this appeal, Issues Nos. 2 and 3 have been resolved in favour of the Appellant, while Issues Nos. 1, 4, 5, 6, 7, 8, 9, 10, 11, and 12 have been resolved against the Appellant.
In spite of my resolution of Issues Nos. 2 and 3 in favour of the Appellant, the more germane Issues on the Issue of title to the land in dispute in between the parties are Issues Nos. 1, 4, 5, 6, 7, 8, 9, 10, 11 and 12 that have been resolved against the Appellant.
Consequently, this appeal lacks merit and it is accordingly dismissed.
There shall be costs of N30,000.00 in favour of thez neighbour to the Respondent Respondent.
ABUBAKAR JEGA ABDUL-KADIR, J.C.A.: I had the privilege of reading before now the Judgment prepared and delivered by my learned brother Owoade, JCA. His Lordship had ably and painstakingly addressed all the salient issues canvassed by the learned counsel to the parties before arriving to a conclusion which is agreeable to me that the appeal lacks merit. I too dismiss the appeal with similar cost as awarded in the lead Judgment.
EMMANUEL AKOMAYE AGIM, J.C.A.: I had read the draft of the Judgment delivered by my learned brother MOJEED ADEKUNLE OWOADE JCA. I agree with the reasoning and conclusions therein. I also hold that the appeal lacks merit. It is accordingly dismissed. I abide by the consequential orders including award of costs in favour of the respondents.
Appearances
B.C. Uzuegbu with F. U. AbazuonuFor Appellant
AND
S.O. NworieFor Respondent
